Access to Judicial Review

1
Access to Judicial Review
2
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?

3
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

4
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?

5
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)

6
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.

7
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.

8
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?

9
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

10
Constitutionally Required Standing

• Injury in fact
• http//biotech.law.lsu.edu/cases/adlaw/Lujan_v_Def
  enders.htm18
• injury, causation, and redressability

11
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?

12
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?

13
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?

14
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?

15
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?

16
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?

17
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?

18
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

19
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

20
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

21
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?

22
Zone of Interests

• Are the plaintiff's interests protected by the
  statute?
• Similar to the test in torts for negligence per se

23
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?

24
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?

25
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

26
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.

27
Stopped here
28
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?

29
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.

30
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

31
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

32
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?

33
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. . .

34
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?

35
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

36
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)

37
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?

38
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

39
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

40
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)

41
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

42
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

43
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

44
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?

45
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?

46
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?

47
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?

48
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

49
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?

50
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

51
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

52
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

53
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

54
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

55
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

56
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

57
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

58
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

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End of Chapter 6