Access to Judicial Review
Part II
Procedural Violations and Causation:
Agency Fails to do an EIS for a Dam
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How does failing to do the EIS make the final agency
action – building the dam – illegal?
 Do you have to show that that they done the EIS, that
the permit for the dam would not have been issued?
Is this partially driven by the nature of the EIS, i.e., that it
is only informational and does not directly drive
decisionmaking?
 Why does this make it difficult to show that an EIS
would affect the outcome of agency decisiomaking?
2
Confusion with Harmless Error
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5 U.S.C. § 706 (Civil procedure)
 “In making the foregoing determinations, the court shall
review the whole record or those parts of it cited by a
party, and due account shall be taken of the rule of
prejudicial error.”
Some courts have required plaintiff to show it is
substantially probable that the procedural breach will
cause the injury
Is this a proper standard for a procedural violation, such as
failing to do an EIS?
Must the plaintiff show that it is more than theoretically
possible for the violation to affect the outcome?
3
What type of Causation?
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Must the government’s violation directly affect
plaintiff?
Does the EPA’s failure to regulate greenhouse
gasses directly affect MA’s coast line?
What directly affects the coast?
Does the EPA’s regulatory failure contribute to the
climate change that affects the ocean?
4
Redressability
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You have to be able to show that the remedy you
seek from the court would address your problem
If you have stated a concrete claim for injury to
your client, you probably have also met this
standard
 The agency must have the power to grant your
remedy
 The remedy must address your client's problem
5
Does the Remedy Help Your Client?
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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 enough charity care
 Why is the plaintiff asking for this remedy?
Would denying the exemption increase charity care?
 What if the plaintiff had shown that hospitals will do
about anything to keep their nonprofit status?
What if plaintiffs could show that the exemption is so
valuable that hospitals always cave in before losing it?
6
Procedural Violations and Redressability
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Assume you have stated a real procedural injury
 Is there still a redressability 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 effect if the procedure is
fixed?
 What if, as in global warming, the effect of the agency action
would be minor?
7
Representational Standing

When can associations bring actions on behalf of their
members?
 At least one member must have standing
 It must fit the organizational mission
 The remedy must not require the participation of
individual plaintiffs, beyond the standing analysis
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Injunctive relief or declaratory judgments
Why is this important for environmental and poverty
action groups
 Why might businesses with money still need it?
8
(Juris)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.
9
Injury to All
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The usual remedy for “injury to all” cases is
legislative or executive, not judicial.
 Taxpayers, for example, have very limited standing
as such.
In the FEC case, everyone was denied the information
about the contributions. There was standing because
Congress said in the enabling legislations that ‘‘any
party aggrieved’’ by a Commission denial of its
complaint could obtain judicial review of the denial.
In the absence of specific statutory authorization,
most injury to all cases will not get standing.
10
Zone of Interests
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5 USC 702
 A person suffering legal wrong because of
agency action, or adversely affected or
aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial
review thereof.
Courts have read this to narrow claims to what the
court determines is the purpose of the statute.
 Similar to the test in torts for negligence per se
11
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?
12
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?
 What is the Endangered Species Act (ESA) problem?
 What is their constitutional standing injury?
Why were they able to use the provision that the agency
rely on the best data?
 Does their case improve the welfare of the suckers?
 How does their claim improve the application of the
ESA?
13
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.
Not overruled, but maybe out of date.
14
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?
15
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?
 Did the statute allow a product to be approved if it affected
health or the environment?
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?
16
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 non-profit exception
and the underlying law?
 Why might this further the purpose of the law?
17
What is the Agency Action?
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The APA defines ‘‘agency action’’ as ‘‘includ[ing] the whole
or a part of an agency rule, order, license, sanction, relief,
or the equivalent or denial thereof, or failure to act.’’ 5
U.S.C. §551(13).
‘‘failure to act’’ means the failure to take one of the discrete
actions listed in the definition of ‘‘agency action.’’
Absent specific statutory direction, can plaintiffs force the
BLM to protect potential wilderness areas from human
use?
 Is failure to act an agency action?
 Why do you get to contest a refusal to make a rule?
18
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
When can the party contest whether the statute or
reg is correctly applied - ranchers/Honeywell?
 Still must show direct impact
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?
Does "Committed to agency discretion" mean that
the action is not subject to judicial review?
20
Complete Preclusion of Judicial Review:
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)
21
Is there Judicial Review at All?
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Abbott Labs is an early foundational case in
administrative law. We read 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?
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?
23
"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 until there is
enforcement?
 What if the penalties are so Draconian that no
one will risk enforcement?
24
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.
25
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
 This might also be seen as a zone of interest question.
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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
27
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
28
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 a specific use 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.
29
Decisions on Rulemaking Petitions
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The court distinguished a decision to refuse to
amend a rule as different from prosecutorial
discretion to do enforcement, allowing judicial
review of these decisions.
 American Horse Protection Assn., Inc. v. Lyng,
812 F.2d 1 (D.C. Cir. 1987)
The review is very narrow – remember Mass. v.
EPA.
30
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
 Lead to controversy with Homeland Security Act
Court says that the plaintiff's constitutional law claim
can be reviewed because no agency is above the
constitution
 Dissent says this makes no sense because it
undermines the agency discretion
31
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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