Chapter 6 - Access to Judicial Review
Part III
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)
2
Statutory Preclusion of Judicial Review



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?
3
Is there Judicial Review at All?


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?
4
When is Review Appropriate?
(Prelude to the later ripeness discussion)


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?
5
"As Applied" (Post-Enforcement) Review


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?
6
Abbott Laboratories v. Gardner, 387 U.S.
136 (1967) - Is There Review?


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.
7
Does Committed To Agency Discretion By
Law Mean No Judicial Review?


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
8
Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402 (1971)


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
9
Block v. Community Nutrition Institute,
467 U.S. 340 (1984)


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.
10
Heckler v. Chaney, 470 U.S. 821 (1985) Lethal Injection Case


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.
11
Webster v. Doe, 486 U.S. 592 (1988)


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
12
Lincoln v. Vigil, 508 U.S. 182 (1993)


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.
13
What is Final Agency Action?
Is There an Agency Action to Contest?




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;
Since agencies have broad discretion to not act, it is hard
to force an agency to do something that is not
specifically required by statute or regulation.
For example, general claims that the EPA is not
protecting the environment do not work
Is There a Final Agency Action?


Similar to 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
16
Federal Trade Commn. v. Standard Oil Co.
of California, 449 U.S. 232 (1980)


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
17
National Automatic Laundry and Cleaning
Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971)



Agency opinion letters - are they just restating the law, or
do they change substantive rights?
 Who are they final for?
This was to an association explaining how the agency
would interpret a new law
 Detailed explanation
 From the secretary's office
 Not based on individualized facts
In this case, the court found that the opinion was
sufficiently specific and from a high enough level to
affect the plaintiff's rights.
18
Western Ill. Home Health Care, Inc. v.
Herman, 150 F.3d 659 (7th Cir. 1998)


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 as
to the parties
 This was influenced by the harsh results
19
Taylor-Callahan-Coleman Counties Dist. Adult
Probation Dept. v. Dole, 948 F.2d 953 (5th Cir.
1991)




This is a classic question - even if an opinion is final
action as to the requestor, does it apply to others?
The opinion was to an individual party, based on that
party's specific facts.
 These are like IRS letter rulings and OIG opinions
The plaintiff was a third party who wanted to challenge
the opinion as it would be applied to it.
The court found that this was not a final agency action, at
least as to other parties.
20
Franklin v. Massachusetts, 505 U.S. 788
(1992)



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?
21
Exhaustion of Administrative Remedies
Exhaustion of Administrative Remedies



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?
This is a source of significant malpractice
 Some of the Katrina levee cases were
dismissed because the plaintiffs did not
exhaust their remedies before filing suit.
23
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.
Can the agency enforce an order and still require
exhaustion of agency appeals process?
 Why would this be logically inconsistent?
24
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
Does the rule have to say exhaustion, or is it
implied by having the process?
25
Exceptions to Exhaustion



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?
26
Example: HUD Regulations




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?
27
Common Law Exhaustion: PortelaGonzalez, 109 F.3d 74 (1st Cir. 1997)




Plaintiff is fired from a civilian Navy job
 The APA does not apply by statute
Plaintiff appeals through 3 levels, but skips last level.
 Firing is in force during appeal
What is the common law of exhaustion?
 Is the APA narrower?
Do you have a final ruling if there is agency process left?
 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)
28
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?
 Can you go to court without a final ruling from the agency?
 Can you get to the Supreme Court in an Article III case if
you screw up the appeal to the Circuit Court?
29
Administrative Issue Exhaustion



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?
30
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
31
Ripeness


"The problem is best seen in a twofold aspect, requiring
us to evaluate both the fitness of the issues for judicial
decision and the hardship to the parties of withholding
court consideration."
 If the case is not ripe, you do not have a case and
controversy
Ripeness is not codified in the APA, so it remains a
jurisprudential doctrine
 Ripeness is jurisdictional, so it can be raised at any
time
32
Was Abbott "Ripe"?


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?
33
Pre and Post Enforcement Review


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
34
What are the Equitable Factors?


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?
35
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. . .
36
Toilet Goods Assn. v. Gardner, 387 U.S.
158 (1967)




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?
37
Example: EPA Smoke Spotters




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?
38
Was the Dispute Ripe in National
Automatic Laundry?


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
39
What about Compliance Orders?



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
 Does this look like Standard Oil?
Is this an appealable final action?
Is it ripe?
40
What if You Benefit from a Policy that is
Being Changed?
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?
 Can it get riper?
 What about manufacturers who thinks the level is too
low?
 How are they different from consumers?

41
What if the Agency Changes a Permit
Process to Your Detriment?


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?
What if the forest service loosens up the permit
process for clear cutting, but there must be a
timber sale with public input before the timber can
be cut?
42
Ripeness Recap


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
43
Stopped here
44
When Can You Go to Court Without
Exhausting Agency Actions?
The agency action is unconstitutional or
exceeds the agency's legal authority


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
46
Impossibility of Agency Remedy


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 still exhaust your
agency remedy
The agency is biased against your client
 Just showing that you are going to lose is not
enough
47
Is there a Final Agency Action?


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?
48
Primary Jurisdiction


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 chance to rule for the
country before hearing an individual dispute
 Often resolves the dispute, so no judicial remedy is
necessary
49
End of Chapter 6