Access to Judicial Review
Part II
Informational Injury
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What is the injury if the agency fails to provide a
document that is available under FOIA?
What if the agency fails to collect required
information that would be available to the public?
What is the injury?
Would a member of the public have standing to
contest this, or is it too generalized an injury?
How does FOIA change this analysis?
2
Example - FEC Classification Decision
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FEC does not classify an organization as one that must
make public reports of its finances, which are then
published by the FEC.
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, but is available under FOIA?
3
Mass v. EPA

There are topic sections in the text that are new,
and are based on Mass v. EPA. We will discuss
that material in our discussion of the case.
4
Procedural Violations and Causation:
Agency Fails to get an EIS for a Dam
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What is the causation problem?
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 is the harmless error doctrine from civil procedure?
 What would the agency have to argue to rebut the
standing claim?
 Why should this be a problem for the agency?
5
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 with
EMTALA, which requires emergency care be provided
without regard to the patient's ability to pay?
6
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
7
Procedural Violations and Redressability
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Assume you have stated a real procedural injury
 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?
 What if, as in global warming, the effect of the agency action is
minor?
8
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?
 Why might businesses with money still need it?
9
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.
10
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?
11
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
12
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?
 Why does this matter?
13
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?
 What is their constitutional standing injury?
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?
 Does their case depend on the welfare of the suckers?
 Is the best science provision also about economic
impacts of the act?
14
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
15
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?
16
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.
How is plaintiff's interest different from the plaintiff in Hazardous
Waste?
 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?
 Was Hazardous Waste different because the rule which was
being limited could be implemented in many different ways,
some of which might have benefited plaintiffs but not the
environment?
 Or is this just confusion in the courts?
17
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 sales taxes itself?
18
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
19
Statutory Preclusion of Judicial Review
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Congress has the power to limit judicial review of
agency actions
 Subject to constitutional limits
What if Congress is silent on the availability of
judicial review in a particular statute?
 Are there situations where the action is
"Committed to agency discretion" and thus not
subject to review?
20
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 the generic name on prescription drug labels
 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 of other
actions and this was not included in the list
The Court found that judicial review is favored, and that it
would not hold it precluded unless the congressional
intent was clear.
21
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
22
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?
23
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)
24
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
25
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
26
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
27
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
 Remember this for Mass. EPA
28
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
29
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
30
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
32
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
Standard wants to appeal this
 Can be used in private antitrust actions
Court says this alone does not have legal
consequences
 Standard must wait until the agency brings an
enforcement action
33
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
34
Stopped here
35
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
36
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
Still an issue: who do you count?
37
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
38
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?
Does Wooley affect this in LA?
40
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.
41
Is Exhaustion Required by Statute or
Regulation?
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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
42
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?
43
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?
44
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.
 Why does it matter whether the APA applies?
 Firing is in force during appeal
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)
45
What if You Screw Up Your Administrative
Appeal?

Assume that a person tried to exhaust the
administrative appeals, but makes a procedural
error such as missing a deadline, and the appeal
is dismissed by the agency
 Since there is no further process available at
the agency, has he exhausted the agency
remedies?
 Has he gotten a final judgment from the agency
on the merits?
46
Administrative Issue Exhaustion
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Must each issue that will be appealed to the
courts be raised at the agency level?
What about in a regular trial: If you do not present
an issue to the trial court - other than a
jurisdictional issue - can you raise it at the first
time on appeal?
What if you raise some issues with the agency,
but not others - can you then appeal the ones you
raised?
47
Sims v. Apfel, 530 U.S. 103 (2000)
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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
48