Access to Judicial Review
Part II
Statutory Preclusion of Judicial Review
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Congress has the power to limit judicial review of
agency actions
What if Congress is silent on the availability of
judicial review in a particular statute?
Abbott Laboratories v. Gardner, 387 U.S.
136 (1967)
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This was a dispute over the authority of the FDA to
require certain labeling changes on prescription drugs,
 The plaintiffs claimed that the FDA exceeded its
statutory authority
 FDA said that this was not reviewable because the
enabling act provided for specific review and this was
not included
The Court found that judicial review is favored, and that it
would not hold it precluded unless the congressional
intent was clear.
Block v. Community Nutrition Institute,
467 U.S. 340 (1984)
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Clarified Abbott's policy on reviewability
 Consumers wanted to challenge rules under
the milk price support law, which was intended
to protect milk producers
 The court found that Congress had specified
who could appeal these orders and how
Coupled with the purpose of the act, this was
enough to show intent to prevent consumer
claims
Complete Preclusion: Smallpox
Emergency Personnel Protection Act 2003

(2) JUDICIAL AND ADMINISTRATIVE REVIEW- No
court of the United States, or of any State, District,
territory or possession thereof, shall have subject
matter jurisdiction to review, whether by
mandamus or otherwise, any action by the
Secretary under this section. No officer or
employee of the United States shall review any
action by the Secretary under this section (unless
the President specifically directs otherwise)
When Is Review Appropriate?
(Prelude to the later ripeness discussion)
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Should the plaintiff be able to get review of an agency
regulation before the agency takes enforcement action?
What is a facial review of a statute?
 What are the problems with a facial review?
 How are these similar to the problems of preenforcement review?
Why does the agency prefer post-enforcement review?
 What happens with compliance?
 What if the penalties are so Draconian that no one will
risk enforcement?
Committed To Agency Discretion By Law
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5 U.S.C. § 701(a)(2)
 (a) This chapter applies, according to the provisions
thereof, except to the extent that  (2) agency action is committed to agency discretion by
law.
This is related to the political question doctrine
 The courts recognize that agencies are charged with
making policy under the direction of the legislature
and the executive branches
 The proper review of a policy choice is through the
ballot box
Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402 (1971)

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Congress said no federal money to build roads in parks if
there was a "feasible and prudent" alternative
 The Secretary authorizes a road in a park and tells
plaintiffs that it is within his discretion and cannot be
reviewed by the courts
 Does the Court have a standard to review this
decision, or is it a pure policy choice?
The court found that "feasible and prudent" provided
adequate law to guide judicial review
 Committed to agency discretion was held to be very
narrow, unless specified by statute
Heckler v. Chaney, 470 U.S. 821 (1985) Lethal Injection Case

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The FDA Act directs the agency to require that
drugs be approved for specific uses before they
can be sold in interstate commerce
 The agency does not police the use of drugs for
unapproved purposes, once they are approved
for at least one use
The court rejected a challenge to this, say this
was classic prosecutorial discretion, which an
agency did not have to justify
American Horse Protection Assn., Inc. v.
Lyng, 812 F.2d 1 (D.C. Cir. 1987)
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Can you get to court to require an agency to make
or modify a rule, in the absence of a
congressional mandate to make the rule?
The APA requires that an agency respond to a
request to make or modify a rule
The court found that this response, or lack of one,
was reviewable
 The court may allow review, but it almost
always defers to the agency
Webster v. Doe, 486 U.S. 592 (1988)
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National Security Act allows CIA employees to be
fired without due process or judicial review
Court says this is within congressional power,
especially for national security
Court says that the plaintiff's constitutional law
claim can be reviewed because no agency is
above the constitution
Dissents say this makes no sense because it
undermines the agency discretion
Lincoln v. Vigil, 508 U.S. 182 (1993)
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Indian health service has the discretion to decide
how to spend certain funds
Court says this cannot be reviewed, it is a classic
policy choice
However, whether the policy has to be announced
through notice and comment versus a simple
policy statement, is reviewable
 The procedure may be reviewable, even if the
policy is not
Final Agency Action
Is there a Final Agency Action?

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Same principles as the rules on appealing orders
by trial judges
Bennett v. Spear, 520 U.S. 154, 177-178 (1997)
 It must be the consummation of the agency
process
 It must affect legal rights or have legal
consequences
Federal Trade Commn. v. Standard Oil Co.
of California, 449 U.S. 232 (1980)
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FTC finds that Standard Oil is engaging in
anticompetitive practices
 Sound familiar?
Standard wants to appeal this
 Can be used in private actions
Court says this alone does not have legal consequences
 Standard must wait until the agency brings an
enforcement action
National Automatic Laundry and Cleaning
Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971)
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Agency opinion letters
This was to an association explaining how the
agency would interpret a new law
 Detailed explanation
 From the secretary's office
In this case, the court found that the opinion was
sufficiently specific and from a high enough level
to affect the plaintiff's rights
Taylor-Callahan-Coleman Counties Dist. Adult
Probation Dept. v. Dole, 948 F.2d 953 (5th Cir.
1991)
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The opinion was to an individual party, based on
that party's specific facts - like an IRS letter ruling
The plaintiff was a third party who wanted to
challenge the opinion as it would be applied to
others
The court found that this was not a final agency
action, at least as to other parties
Franklin v. Massachusetts, 505 U.S. 788
(1992)
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MA wants to contest the method the Department
of Commerce used to correct the census numbers
 Why does this matter?
The President is charged with determining the
final count, and Congress does the reallocation of
representatives
The court found that the report from Commerce
was only a recommendation to the President
Western Ill. Home Health Care, Inc. v.
Herman, 150 F.3d 659 (7th Cir. 1998)
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This was an opinion letter to two specific parties
about whether they were subject to the joint
employer doctrine
The letter said they were, and that they were now
on notice so they would be subject to the
penalties for a willful violation
The court found this was a final agency action
 This was influenced by the harsh results
Exhaustion of Administrative Remedies
Exhaustion of Administrative Remedies
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This is another timing issue
Does the plaintiff have to go through the agency
process before going to court?
Does the plaintiff have to present the same issues
to the agency as will be challenged later in court?
How does Wooley affect this in LA?
APA - 5 U.S.C. § 704

. . . Except as otherwise expressly required by
statute, agency action otherwise final is final for
purposes of this section whether or not there has
been presented or determined an application for a
declaratory order, for any form of reconsideration,
or, unless the agency otherwise requires by rule
and provides that the action meanwhile is
inoperative, for an appeal to superior agency
authority.
Is Exhaustion Required by Statute or
Regulation?

The key question is whether the enabling act or an
agency regulation requires exhaustion
 If exhaustion is not required, then the party may
go to court directly
 However, if there is an agency process
available, and you lose in court, you may have
waived your agency appeal
Exceptions to Exhaustion
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Will requiring exhaustion prevent the court from
properly reviewing the action?
 Has the enforcement been stayed?
 Will the plaintiff suffer irreparable harm?
Can the agency process provide the requested
relief?
Is the agency so biased or prejudiced that it
cannot give a fair review?
Example: HUD Regulations
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HUD regulations allow, but do not require that an
administrative appeal be filed
The granting of the appeal is discretionary with
the secretary
The ruling of the ALJ becomes final in 30 days
and is not stayed by a request for a hearing
Must a litigant request an administrative appeal
before going to court?
Portela-Gonzalez v. Secretary of the Navy,
109 F.3d 74 (1st Cir. 1997)
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Plaintiff is fired from a civilian Navy job
 Plaintiff appeals through 3 levels, but skips last level.
 Firing is in force during appeal
 Why does it matter whether the APA applies?
Just knowing that you are going to lose through the
agency process is not enough
 You have to show that the agency is biased or
prejudiced (which is nearly impossible)
Administrative Issue Exhaustion
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Sims v. Apfel, 530 U.S. 103 (2000)
 Social Security disability benefits
The court held that the general rule is that
plaintiffs who are subject to exhaustion of
remedies must also present the issues they want
to appeal to the agency
In the specific case, the court found that the
special nature of SS mitigated against preclusion
 Informal, and applicants seldom have counsel
Ripeness
Is Abbott "Ripe"?
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Ripeness deals with whether the case and controversy is
sufficiently far along that the court has enough
information to intervene
In a facial challenge, the court does not need to see how
the rule is applied
The court must also find that this is a final agency action
 In this case, the rule required the product labels to be
changed without further agency action
 What is the impact of this regulation?
 What is the risk of enforcement?
Pre and Post Enforcement Review
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While review is favored, there is no right to review
before the agency brings an enforcement actions
 Plaintiffs asked for an injunction
 They claimed they could not risk enforcement
An injunction prevents the agency from acting
 Prevents important health and safety measures
 Enmeshes the court in agency policy making
What are the Equitable Factors?
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Since there is no right to pre-enforcement review,
the plaintiff must show the court an equitable
basis for granting review, which resembles the
factors for granting an injunction
 Is there an immediate effect of the agency
action on the plaintiff's activities?
 What is the risk of waiting for enforcement?
 Who will get hit by enforcement?
What are the special factors in the drug business?
Abbott Rule

Where the legal issue presented is fit for judicial
resolution, and where a regulation requires an
immediate and significant change in the plaintiffs’
conduct of their affairs with serious penalties
attached to noncompliance, access to the courts
under the [APA] must be permitted, absent a
statutory bar or some other unusual
circumstance. . .
Toilet Goods Assn. v. Gardner, 387 U.S.
158 (1967)
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Companion case to Abbott
FDA promulgated a rule allowing them to inspect
toilet good manufacturers to assure compliance
with FDA regulations
How is a rule allowing inspections different from
the rule in Abbott?
How are the equities different?
Example: EPA Smoke Spotters
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The “credible evidence” rule allowed visual
observation of smoke from a smokestack to be
used as evidence that a person was violating its
Clean Air Act requirements
Plaintiffs contest the action, saying it was beyond
agency authority
Is this more like Toilet Goods or Abbott Labs?
Do plaintiffs have to change their behavior?
Was the Dispute Ripe in National Automatic
Laundry?
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The court found that the dispute in National
Automatic Laundry was ripe because the opinion
included detailed factual hypotheticals on the
application of the doctrine in different situations
This gave the court the necessary factual
information to review the application
Without this detail, the court would have required
the plaintiff to wait for enforcement so there
would be facts to evaluate
Stopped Here
What about Compliance Orders?
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An order to a specific party to obey the law
 Based on the agency's view that the party is not
in compliance with the law
 Not self-enforcing - the agency must bring a
separate enforcement action to force
compliance
Is this an appealable final action?
Is it ripe?
What if You Benefit from a Policy that is
Being Changed?
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FDA regulates contamination in foods
 These are impossible to completely remove
 The agency issues allowable (action) levels
You represent consumers who believe that the
new (higher) action levels are dangerous
 Is the action ripe as to your claim?
 What about a manufacturer?
How are these different?
What if the Agency Changes a Permit
Process to Your Detriment?
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The NRC says it is loosening up the permit
process for dumping low level waste
Is this ripe?
What has to happen before any waste is dumped
under this rule?
Ripeness Review
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Ripeness is the other side of exhaustion of
agency remedies
Enforcement actions, permits, and other
affirmative agency actions against your client
 If you have done everything the agency
requires, then you exhausted agency remedies
 Your case is ripe
When Can You Go to Court Without
Exhausting Agency Actions?
The agency action is unconstitutional or
exceeds the agency's legal authority
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Rulemaking - Facial Challenge
 You have to convince the court that the rule does not
have a legal application
 You have to convince the court that your client will
suffer significant harm if it must wait for enforcement
 If you fail, then you have to wait until the agency acts
against your client
Agency enforcement actions let you go for an injunction
or other attack on the agency authority
Impossibility of Agency Remedy
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The agency does not offer the remedy you seek
 You want money damages and the agency
remedies only offer that the agency will stop
enforcement actions
 Congress can require you to go anyway
The agency is biased against your client
 Just showing that you are going to lose is not
enough
Is there a Final Agency Action?
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Most of the hard cases involve agency actions that may
put your client at risk, but are not enforcement actions
and do not have set appeals standards
In general, you have to show that your client's rights are
significantly impacted and that there is a real threat of
enforcement.
Opinion letters are a good example
 Is it directed to your client?
 Is it specific enough to force changes in your client's
behavior?
 Is there a real threat of enforcement?
Primary Jurisdiction
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This is related to "Committed To Agency Discretion"
 In these disputes there is a issue which meets the
standard for judicial review
 The primary jurisdiction question is whether the
courts should let the agency resolve the problem first
This is important when national uniformity is important,
such as automobile emissions standards
 The court gives the agency the change to rule for the
country before hearing an individual dispute
 Often resolves the dispute, so no judicial remedy is
necessary
End of Chapter 6