Access to Judicial Review
Exam Notes




In class
If you want to use a computer, you have to get
with the tech guys and arrange to use the exam
software
Somewhat different from past years
 Short problems and specific questions
Open book? Notes?
Objectives




Understand the difference between jurisdiction
and standing
Understand the theories of standing and how they
are used in adlaw cases
Understand ripeness in the agency context,
including exhaustion of remedies and primary
jurisdiction
The details of access to the courts is for the
federal courts course
Getting to Court is Not Winning!


Remember from due process
 Getting a hearing is not the same as prevailing
in the hearing
If you cannot get to court, you cannot win
 Why is getting to court good even if you cannot
win?
Jurisdiction and Standing


Must be present or the claim is void
Can be raised at any time, including by the court
on its own (sua sponte)
28 USC § 1251. Original jurisdiction


(a) The Supreme Court shall have original and exclusive
jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive
jurisdiction of:
 (1) All actions or proceedings to which ambassadors, other
public ministers, consuls, or vice consuls of foreign states are
parties;
 (2) All controversies between the United States and a State;
 (3) All actions or proceedings by a State against the citizens of
another State or against aliens.
28 § 1331. Federal question

The district courts shall have original jurisdiction
of all civil actions arising under the Constitution,
laws, or treaties of the United States.
28 § 2342. Jurisdiction of court of appeals





http://biotech.law.lsu.edu/cases/adlaw/statutes/28
usc2342.htm
What sort of actions are reviewed by circuit
courts?
What is the rationale?
Can you fall back to 1331 if the jurisdictional
statute is not exclusive?
What about suits to force the agency to issue a
rule that would be covered by § 2342?
Standing


Constitutionally Required Standing
 All cases must meet this standard
 While the United States Supreme Court can
interpret what it means, the courts cannot
abolish it
Prudential standing
 Additional statutory or judicial limits over the
constitutional requirements
Constitutionally Required Standing

Injury in fact
 http://biotech.law.lsu.edu/cases/adlaw/Lujan_v_
Defenders.htm#18
 injury, causation, and redressability
Recreational, Aesthetic, or Environmental
Injury



Sierra Club v. Morton, 405 U.S. 727 (1972)
 Just loving trees from far away is not enough
 If you use the area for recreation, this can be
enough
Why did the court find that just loving trees was
not enough?
When might this really affect whether a case can
be brought?
Animal Standing



Do animals have constitutional rights?
 Is there a constitutional right to bear dogs?
 Are dogs really just people in little fur coats?
What is the test for standing to challenge agency
actions that affect animals?
 What if you work with lab animals?
 Visit the zoo regularly?
Why is animal standing very controversial?
Risk as Injury


The courts have accepted a theoretical risk of harm, such
as increased risk of cancer from a landfill, as injury
 What are the policy implications
 What could the effect be on the NO cleanup?
Louisiana Environmental Action Network v. U.S. E.P.A.,
172 F.3d 65 (D.C. Cir. 1999)
 What if there is a conflict of interest between the
members of a group?
 Does the group have to look out for everyone?
Procedural Injury



What is a procedural injury?
What does a plaintiff have to show to get
standing?
 Is the procedural injury enough?
What if the agency passes a rule that allows ex
parte contacts in a proceeding you participate in?
 What is the injury?
Procedural Injury and Causation



What is the causation problem?
Do you have to show that the outcome would
have been different?
Why is standing limited by the harmless error
doctrine?
Third-Party Actions and Causation


Can you get standing because of the effect of an
action on a third party?
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 this really improve the charity care?
 What would they need to show?
Informational Injury

The agency fails to collect required information
that would be available to the public
 Would a member of the public have standing to
contest this?
 Why?
Redressability


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
Representational Standing


Why is this important for environmental and
poverty action groups?
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
Prudential Standing


This is an umbrella over several different theories
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
Generalized Standing



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?
Zone of Interests


Are the plaintiff's interests protected by the
statute?
Similar to the test in torts for negligence per se
Air Courier Conference of America v. American
Postal Workers Union, AFL-CIO, 498 U.S. 517
(1991)



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?
Bennett v. Spear, 520 U.S. 154 (1997)


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?
Why were they able to use the provision that the
agency rely on the best data?
Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U.S. 150 (1970)



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
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;
This makes it hard to force an agency to do something
that is not specifically required by statute or regulation.
Stopped here
Preclusion of Judicial Review


Congress has the power to limit judicial review of
agency actions
What if Congress is silent on the availability of
judicial review in a particular statute?
Abbott Laboratories v. Gardner, 387 U.S.
136 (1967)



This was a dispute over the authority of the FDA
to require certain labeling changes on
prescription drugs,
This is a pure "facial" challenge
 The plaintiffs claimed that the FDA exceeded its
statutory authority
The Court found that judicial review is favored,
and that it would not hold it precluded unless the
congressional intent was clear.
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
Is Abbott "Ripe"?



Ripeness deals with whether the case and
controversy is sufficiently far along that the court
has enough information to intervene
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 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?
What are the special factors in the drug business?
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. . .
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?
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
Smallpox Emergency Personnel
Protection Act of 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)
Is there a Final Agency Action?



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
How does this fit Abbott and Toilet Goods?
Federal Trade Commn. v. Standard Oil Co.
of California, 449 U.S. 232 (1980)



FTC finds that Standard Oil is engaging in
anticompetitive practices
 Sound familiar?
Standard wants to appeal this
 Can be used in private actions
Court says this alone does not have legal consequences
 Standard must wait until the agency brings an
enforcement action
National Automatic Laundry and Cleaning
Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971)



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
Was the Dispute Ripe?



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
 (It is not a facial challenge)
Taylor-Callahan-Coleman Counties Dist. Adult
Probation Dept. v. Dole, 948 F.2d 953 (5th Cir.
1991)



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
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
 This was influenced by the harsh results
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
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
Is this an appealable final action?
Is it ripe?
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?
What about a manufacturer?
How are these different?
What if the Agency Changes a Permit
Process to you 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?
Exhaustion of Administrative Remedies



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?
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
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?
Portela-Gonzalez v. Secretary of the Navy,
109 F.3d 74 (1st Cir. 1997)

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
 Just because you do not meet the agency's
criteria is not enough
Administrative Issue Exhaustion



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
Committed To Agency Discretion By Law




5 U.S.C. § 701(a)(2)
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
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 reasonable 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
The court found that the question of reasonable
and prudent provided adequate law to guide
judicial review
Heckler v. Chaney, 470 U.S. 821 (1985) Lethal Injection Case



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
American Horse Protection Assn., Inc. v.
Lyng, 812 F.2d 1 (D.C. Cir. 1987)



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
 As we will see later, the court may allow review,
but it almost always defers to the agency
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
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
Lincoln v. Vigil, 508 U.S. 182 (1993)



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
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 change to make a rule
for the country before hearing an individual dispute
End of Chapter 6