Access to Judicial Review
Part II
Procedural Violations and Causation:
Agency Fails to do an EIS for a Dam
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What is the causation problem?
Do you have to show that that they done 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?
2
Can You Challenge an Action Against 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?
3
Redressability
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You have to be able to show that the remedy you
seek from the court would address your problem
 The Simon problem
If you have stated a concrete action for injury to
your client, you probably have also met this
standard
 The problem is if the agency does not have the
power to do what you want
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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?
5
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?
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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.
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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
 If everyone suffers the same injury, should the remedy
be a rule rather than an individual adjudication?
Why might it better for the claims related to Katrina to be
decided by legislation, rather than the courts?
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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 whether a plaintiff
can state a case of negligence per se
9
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?
 Why did this break down?
Were there any postal worker unions when the law
was passed?
 Why does this matter?
10
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
 Why do they want the water released?
 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?
11
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
12
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?
13
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?
14
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?
 Protect tax revenue by limiting exceptions
 Protect for-profits from non-profits?
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Zone of Interests Review
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Is the plaintiff's interest directly addressed by the
statute or reg?
Is the plaintiff's interest congruent with the
statute, so that enforcing it furthers the purpose
of the statute or reg?
 Courts have bought this, but it is shakey
Is the statute or reg being correctly applied ranchers/Honeywell?
 Still must show direct impact
16
Is There an Agency Action to Contest?
What is an Agency Action?
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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
18
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?
 This is different from field preemption
19
Complete Preclusion: Smallpox
Emergency Personnel Protection Act 2003
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(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)
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Is there Judicial Review?
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We see Abbott Labs for two issues. The first is
whether there is any judicial review at all, in the
absence of specific congressional authorization.
The second issue is the timing for review, i.e., was
the issue ripe?
21
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?
22
"As Applied" (Post-Enforcement) Review
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Why does the agency prefer post-enforcement
review?
 What happens with compliance?
What additional information does the court get
when it requires the plaintiff to wait to until there
is enforcement?
 What if the penalties are so Draconian that no
one will risk enforcement?
23
Abbott Laboratories v. Gardner, 387 U.S.
136 (1967) - Is There Review?
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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.
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Does Committed To Agency Discretion By
Law Mean No Judicial Review?
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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
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
 Who does the milk price support law protect?
27
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.
 Later cases question whether the FDA has the
authority to regulate post-sale use.
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
 This is a classic earmark - funds with a non-statutory
direction on how to spend them.
 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.
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