Getting into Court

1
Getting into Court

• Last week we talked about the statutes that
  provide jurisdiction to get into court at all
• If you can get into court, then there are three
  more hurdles
• Preclusion - has Congress limited judicial review
  of certain matters?
• Standing - does your client have the right
  interest to bring the case?
• Exhaustion of remedies - are you finished with
  the agency?

2
Basic Constitutional Question - Unresolved

• Except for certain cases which the Constitution
  gives to the United States Supreme Court, all of
  the jurisdiction of the federal courts was
  granted by Congress
• Can Congress take away long-standing
  jurisdiction?
• Can Congress take away jurisdiction over basic
  constitutional rights like habeas corpus?

3
Preclusion of Judicial Review

• What is the effect of precluding judicial review?
• Is this favored by the courts?
• Where does Matthews v. Eldridge come in?
• When would you expect the courts to be most open
  to preclusion of review?

4
When is Preclusion a Good Policy?

• The president's decision to accept or reject a
  list of base closings
• An agency's decision to quit funding a health
  program out of lump sum appropriations
• An agency's refusal to reconsider its own
  decisions
• The CIA director's decision to fire an employee
  when the statute says he can do so whenever such
  termination is necessary or advisable in the
  interests of the united states
• (the decision was reviewable on constitutional
  grounds)

5
What are You Really Asking the Court to Review?

• The key in cases where preclusion is an issue is
  what you really want reviewed.
• Is it a fact found by the agency?
• An exercise of agency discretion?
• Whether the agency is acting beyond its legal
  authority?
• Whether the agency is acting constitutionally?

6
Statutory Limits on Judicial Review

• The courts read statutory limits on judicial
  review very narrowly
• Abbott stated the modern policy
• There should be agency review unless the statute
  clearly precludes review
• Even when the statute seems to preclude review,
  the courts will often allow review anyway.

7
Bowen v. Michigan Academy of Family Physicians

• Dispute over the policy on the payment rate for
  Medicare Claims
• Individual claims are decided by private
  contractors called fiscal intermediaries
• Why did congress preclude review of individual
  claims decisions?
• What is the Matthews analysis?
• What is the distinction between reviewing the
  regs and reviewing the individual claims?

8
Limiting Review of Regulations

• Congress can put a statute of limitations on the
  review of regs
• Often 60 days
• What if do not know about the applicability of
  the reg until later?
• What cannot be precluded?

9
Committed to Agency Discretion

• The statute may also preclude judicial review by
  committing the matter to agency discretion
• This is a broad limitation on review and is
  construed narrowly.

10
Classic Examples

• Prosecutorial discretion
• Can you sue prosecutors to force them to bring
  prosecutions?
• Can you think of a possible exception?
• Agency enforcement decisions
• What was the prisoners claim in Heckler v.
  Chaney?
• (Court could have dodged on a medical practice
  argument)
• What will you have to show to get a court to
  force action?

11
Modern Formulation for Committed to Agency
Discretion No Law to Apply

• Judicial review must be based on some standard
• Constitutional cases are decided by reference to
  the constitution
• Chevron cases are decided by looking at the
  enabling act giving the agency power
• If the agency action satisfies both of these,
  then further review depends on finding criteria
  to evaluate the agency action

12
Agency Discretion Implies Freedom to Decide

• Why is the problem of no law to apply the real
  reason why the courts do not review discretionary
  actions?
• This is the key to discretion cases, esp. cases
  like Heckler v Chaney, where there is no statute
  or regulation to set the standard of conduct
• Why does this make it nearly impossible to review
  an agency's discretionary failure to act?

13
What Can You Do if the Agency Claims it does not
have to Act?

• (i) is it really discretionary?
• (ii) is it based on a erroneous legal
  determination?
• (iii) does the statute allow a private right of
  action against the regulated party, say for
  adverse health effects?
• (iv) you can petition the agency to promulgate a
  rule requiring the action
• (v) use political power to force the agency to act

14
Standing
15
The Constitutional minimum for standing - Case or
Controversy

• 1) injury in fact that is
• a) concrete and particularized and
• b) actual or imminent, not conjectural or
  hypothetical
• 2) causal connection between the injury and
  conduct complained of, it must not be due to the
  action of some third party not before the court
• 3) it must be likely, not speculative, that the
  injury will be redressed by a favorable decision

16
702. Right of review

• 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.

17
Injury in Fact and Zone of Interest Tests

• How personal does the injury have to be?
• This is the core of many environmental actions,
  but is also a key issue in the business world
• Should Sun have the right to contest an FTC
  settlement with Microsoft?

18
Association of Data Processing Service Orgs. V.
Camp

• Comptroller of the Currency allowed national
  banks to offer data processes services.
• Plaintiffs, who represent other data processors,
  claim this violates the national bank act
• First question - is there injury in fact?

19
Second question - is this interest within the
zone of interests meant to be protected by the
law?

• APA 702 - "aggrieved by agency action within the
  meaning of a relevant statute"
• Must the injury be economic?
• Flast - - first amendment challenges to school
  prayer
• What is the statutory issue?
• The act says banks can only do banking services
  for banks
• Could be to protect bank customers, not
  competitors of banks

20
What does the court say about the purpose of the
statute?

• Does give standing to competitors since it
  directly implicates their business
• Could the court have decided this differently?
• Doesnt every regulation that affects a business
  also affects its competitors?

21
Third question - has judicial review been
precluded?

• Preclusion is an extreme result
• The court will seldom find that review is
  precluded unless it is specifically provided for
  by the statute
• No preclusion provisions in the national bank act

22
Air Courier v. American Postal Workers Union

• Private Express Statute - Gives USPS a monopoly
  on first class mail
• USPS wants to suspend it to allow courier
  services like Fed Ex
• Union fights this, says it will reduce jobs in
  the USPS

23
Why is the date the act was passed important to
determining Congressional intent?

• Act was passed in 1792 - no postal workers
• What did the court determine was the purpose of
  the act?
• Why was this an important purpose?
• Were the postal workers in the zone of interest?

24
Does Congress or the Constitution Control Zone of
Interest? (corrected)

• Congress can control this aspect of standing,
  making it broad or narrow in the enabling act
• If Congress is silent, then 702 controls

25
How was this illustrated in Sierra Club v. Morton
(1972)?

• The Sierra club cannot sue to preserve historic
  values just because it is interested in them.
• Must show that a member has independent standing

26
What did Congress do with standing in the
Endangered Species Act?

• Allowed "any citizen" to sue to enjoin certain
  actions under the act
• What was the effect of this provision on the zone
  of interest test?
• Court said this abolished the zone of interest
  test in these situations
• Zone of interest is more difficult for the courts
  to determine than injury in fact

27
Lujan v. Defenders of Wildlife

• Plaintiff went to Sri Lanka and saw endangered
  animals and was upset and they want to go back
  and see the animals again
• Plaintiffs argue ecosystem standing
• Everything is connected together so everyone has
  standing
• Does the court buy this?

28
Animal Law

• Should animals have standing?
• What about very smart monkeys?
• What about people who empathize with animals?
• Rat Case
• Could Congress grant animals standing, with a
  guardian ad litem, perhaps?
• Could Louisiana?

29
Associations

• What are the requirements for an association to
  have standing?
• a) at least one of their members has standing
• b) the interests the association seeks to protect
  are germane to the association's purpose
• c) neither the claim nor the relief requires the
  participation of individual members in the
  lawsuit.
• Why is this critical for civil rights and
  environmental groups?

30
Tax Payer Actions

• Most states allow tax payers to contest what they
  claim are illegal expenditures of tax funds
• Do the federal courts?
• The feds do not, except in very narrow
  circumstances
• Why not?
• Would be a vehicle for contesting all government
  action

31
Standing of Government Agencies

• In state law, many states allow agencies to
  contest the rulings of other agencies.
• AG's Office in LA
• Federal agencies can do the same only if there is
  specific statutory authorization
• Otherwise, "an agency in its governmental
  capacity is not "adversely affected or aggrieved"
  by other agency regulations.
• This driven by the different separation of powers
  issues in states v. the feds