Chapter 6 - Access to Judicial Review
Part IV
Finality Continued
2
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?
3
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 because it required an immediate
change in behavior
 This was influenced by the harsh results
4
Finality Wrap-up

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Is the agency action directed to your client?
 If not, what is your argument as to why it
affects your client’s interests?
Is it complete, or an intermediate action?
Does it have legal consequences, i.e., will it
require your client to change its behavior?
 Does it require an immediate change?
5
Exhaustion of Administrative Remedies
When is the agency done with you?
Exhaustion of Administrative Remedies


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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.
7
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?
(There is a common law exhaustion discussed later for nonAPA cases.)
8
Is Exhaustion Required by Statute or
Regulation?


The key question under the APA 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?
9
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 you request an administrative appeal before
going to court?
 Remember 704
10
Common Law Exhaustion: PortelaGonzalez, 109 F.3d 74 (1st Cir. 1997)

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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)
11
Exceptions to Common Law Exhaustion

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Will requiring exhaustion prevent the court from
properly reviewing the action?
 Is the enforcement proceeding and will the 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?
12
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?
13
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?
14
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
15
Issue Exhaustion in Rulemaking

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When do parties have a chance to object to
provisions in a rulemaking?
Should they be required to make their objections
during the comment period if they plan to
challenge the rule later in court?
Is this analogous to an administrative appeal of an
order?
What if the party did not raise the issue in a
comment, but someone else did?
16
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
17
Abbott Round II
18
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?
19
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
20
What are the Equitable Factors? (Think
injunction standards)

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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?
 Does the court have enough information to
determine the issue?
What are the special factors in the drug business?
21
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. . .
22
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?
23
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?
24
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
25
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
 Does this look like Standard Oil?
Is this an appealable final action? Is it ripe?
26
Sackett v. U.S. EPA, 132 S. Ct. 1367 (2012)

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(Not in the book)
Are EPA Clean Water Act compliance orders final,
appealable orders?
These differ from the usual compliance order in
that the EPA starts the penalty clock from the
issuance of the compliance order. Thus there is
an ever increasing penalty for delay in complying.
How would this change your analysis?
27
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
 This is a safe harbor, it is not necessarily the
safety limit that would trigger sanctions if
exceeded
28
Whose Claim is Ripe?
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 think the level is too
low?
 How are they different from consumers?
 What new info might the court get by waiting until
enforcement?

29
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?
30
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 have exhausted agency
remedies
 Your case is ripe
31
APA - 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
 How does this differ from a challenge that the record is not
adequate?
 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
33
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
 Remember from previous chapters how hard this is to
prove.
34
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
35
End of Chapter 6