Access to Judicial Review

1
Access to Judicial Review

• Part II

2
Informational Injury

• What is the injury if the agency fails to provide
  a document that the law makes available under
  FOIA?
• What if 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?

3
Example - FEC Classification Decision

• FEC does not classify an organization as one that
  must make public reports of its finances
• Does a plaintiff who wants info on the group have
  standing to contest the classification?
• What is FEC's argument against standing?
• How did the Court use the purpose for collecting
  the information to support the plaintiff's
  standing claim?
• What is your argument if the required information
  is not reported to the public?

4
Procedural Violations and CausationAgency Fails
to get an EIS for a Dam

• What is the causation problem?
• What is the harmless error doctrine from civil
  procedure?
• Do you have to show that that they gotten the
  EIS, that the dam would not have been built?
• What is the correct showing?
• What would the agency have to argue to rebut the
  standing claim?
• Why should this be a problem for the agency?

5
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 denying the exemption increase charity
  care?
• What would they need to show?
• What if this was an order from HHS to comply
  EMTALA, which requires emergency care be provided
  without regard to the patient's ability to pay?

6
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

7
Procedural Violations and Redressability

• Assume you have stated a real injury in a
  procedural violation case
• Is there still a redressablity problem because
  the plaintiff cannot show that fixing the
  violation would result in a favorable result?
• In Lujan v. Defenders of Wildlife, the Court
  said, the person who has been accorded a
  procedural right to protect his concrete
  interests can assert that right without meeting
  all the normal standards for redressability and
  immediacy."
• Do you still have to show a theoretical chance of
  a change in agency action if the procedure is
  fixed?

8
Representational Standing

• 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
• Why is this important for environmental and
  poverty action groups?

9
Injunctions and Declaratory Relief

• If one plaintiff has standing, the action can go
  forward, even if others do not.
• Why is this different from a damage action with
  several plaintiffs?

10
Prudential Standing

• This is an umbrella over several different
  theories created by judges
• 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
• Since this a court created doctrine and not a
  constitutional doctrine, the legislature can
  override it.

11
Problems with 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?

12
Zone of Interests

• Are the plaintiff's interests protected by the
  statute?
• This is a court created doctrine to ensure that
  claims made under a statute actually advance the
  purpose of the statute, including the intended
  beneficiaries
• Similar to the test in torts for negligence per se

13
Air Courier Conference of America v. American
Postal Workers Union, 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?

14
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?
• Does their claim improve the application of the
  ESA?
• How does their case depend on the welfare of the
  suckers?

15
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

16
Hazardous Waste Treatment Council v. Thomas, 885
F.2d 918 (D.C. Cir. 1989)

• Trade group represents providers of advanced
  waste treatment services
• EPA adopts rule requiring less complete treatment
  of waste
• Why does plaintiff want to contest the rule?
• What is the purpose of the rule (remember CBA)?
• Did the court find plaintiff in the zone of
  interest?

17
Honeywell International, Inc. v. EPA, 374 F.3d
1363 (D.C. Cir. 2004)

• Plaintiff contests the EPA allowing a product
  made by a competitor to be substituted for a CFC.
• What is plaintiff's interest?
• How is plaintiff's interest different from
  plaintiff in trade group case?
• What is the plaintiff's argument for why the
  environment is harmed by the substitution?
• Why does the specificity of the standard help
  plaintiff's case, compared to the trade group
  case?

18
Example Internet Book Stores

• IRS allows non-profit college book stores to
  operate on the Internet
• Other Internet books stores object
• What is the analysis?
• What is the purpose of the exception and the
  underlying law?
• How might the analysis shift if Amazon is the
  plaintiff and does not pay sales taxes itself?

19
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.
• For example, general claims that the BLM is not
  protecting the environment do not work

20
Statutory 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?

21
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,
• 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 and
  this was not included
• The Court found that judicial review is favored,
  and that it would not hold it precluded unless
  the congressional intent was clear.

22
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

23
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)

24
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
  pre-enforcement review?
• Why does the agency prefer post-enforcement
  review?
• What happens with compliance?
• What if the penalties are so Draconian that no
  one will risk enforcement?

25
Committed To Agency Discretion By Law

• 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

26
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

27
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

28
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
• The court may allow review, but it almost always
  defers to the agency
• Remember this for Mass. EPA

29
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

30
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

31
Final Agency Action
32
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

33
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

34
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

35
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

36
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

37
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

38
Exhaustion of Administrative Remedies
39
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?
• How does Wooley affect this in LA?

40
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.

41
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

42
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?

43
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?

44
Portela-Gonzalez v. Secretary of the Navy, 109
F.3d 74 (1st Cir. 1997)

• Plaintiff is fired from a civilian Navy job
• Plaintiff appeals through 3 levels, but skips
  last level.
• Firing is in force during appeal
• Why does it matter whether the APA applies?
• 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)

45
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