1. Access to Judicial Review Part II

2. 2 Procedural Violations and Causation: Agency Fails to do an EIS for a Dam What is the causation problem? Do you have to show that that they done the EIS, that the permit for the dam would not have been issued? What is the correct showing? What is the harmless error doctrine from civil procedure? What would the agency have to argue to rebut the standing claim? Why should this be a problem for the agency?

3. 3 Redressability You have to be able to show that the remedy you seek from the court would address your problem If you have stated a concrete action for injury to your client, you probably have also met this standard The agency must have the power to grant your remedy The remedy must address your client's problem

4. 4 Does the Remedy Help Your Client? 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? Why is the plaintiff asking for this remedy? What if the plaintiff had shown that hospitals will do about anything to keep their nonprofit status? What if this was an action to force HHS to order the hospital to comply with EMTALA, which requires emergency care be provided without regard to the patient's ability to pay?

5. 5 Procedural Violations and Redressability Assume you have stated a real procedural injury 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, “[t]he 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? What if, as in global warming, the effect of the agency action is minor?

6. 6 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? Why might businesses with money still need it?

7. 7 (Juris)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.

8. 8 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 whether a plaintiff can state a case of negligence per se

9. 9 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? Why did this break down? Were there any postal worker unions when the law was passed? Why does this matter?

10. 10 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

11. 11 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. Why do they want the water released? What is the Endangered Species Act (ESA) problem? What is their constitutional standing injury? Why were they able to use the provision that the agency rely on the best data? Does their case improve the welfare of the suckers? How does their claim improve the application of the ESA?

12. 12 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?

13. 13 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. How is plaintiff's interest different from the plaintiff in Hazardous Waste ? 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? Was Hazardous Waste different because the rule which was being limited could be implemented in many different ways, some of which might have benefited plaintiffs but not the environment? Or is this just confusion in the courts?

14. 14 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 non-profit exception and the underlying law? Why might this further the purpose of the law?

15. 15 Zone of Interests Review Is the plaintiff's interest directly addressed by the statute or reg? Is the plaintiff's interest congruent with the statute, so that enforcing it furthers the purpose of the statute or reg? Courts have bought this, but it is shakey Is the statute or reg being correctly applied - ranchers/Honeywell? Still must show direct impact

16. 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

17. 17 Statutory Preclusion of Judicial Review Congress has the power to limit judicial review of agency actions Subject to constitutional limits What if Congress is silent on the availability of judicial review in a particular statute? Does "Committed to agency discretion" mean that the action is not subject to judicial review?

18. 18 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)

19. 19 Is there Judicial Review at All? Abbott Labs is an early foundational case in administrative law. We read Abbott Labs for two issues. The first is whether there is any judicial review at all, in the absence of specific congressional authorization. The second issue is the timing for review, i.e., was the issue ripe?

20. 20 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?

21. 21 "As Applied" (Post-Enforcement) Review Why does the agency prefer post-enforcement review? What happens with compliance? What additional information does the court get when it requires the plaintiff to wait to until there is enforcement? What if the penalties are so Draconian that no one will risk enforcement?

22. 22 Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) - Is There Review? This was a dispute over the authority of the FDA to require the generic name on prescription drug labels 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 of other actions and this was not included in the list The Court found that judicial review is favored, and that it would not hold it precluded unless the congressional intent was clear.

23. 23 Does Committed To Agency Discretion By Law Mean No Judicial Review? 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

24. 24 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

25. 25 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 Who does the milk price support law protect?

26. 26 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. Later cases question whether the FDA has the authority to regulate post-sale use.

27. 27 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 Lead to controversy with Homeland Security Act Court says that the plaintiff's constitutional law claim can be reviewed because no agency is above the constitution Dissent says this makes no sense because it undermines the agency discretion

28. 28 Lincoln v. Vigil, 508 U.S. 182 (1993) Indian health service has the discretion to decide how to spend certain funds This is a classic earmark - funds with a non-statutory direction on how to spend them. 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.