1. Access to Judicial Review Part II

2. 2 Informational Injury What is the injury if the agency fails to provide a document that is available under FOIA? What if the agency fails to collect required information that would be available to the public? What is the injury? Would a member of the public have standing to contest this, or is it too generalized an injury? How does FOIA change this analysis?

3. 3 Example - FEC Classification Decision FEC does not classify an organization as one that must make public reports of its finances, which are then published by the FEC. 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, but is available under FOIA?

4. 4 Mass v. EPA There are topic sections in the text that are new, and are based on Mass v. EPA. We will discuss that material in our discussion of the case.

5. 5 Procedural Violations and Causation: Agency Fails to get an EIS for a Dam What is the causation problem? 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 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?

6. 6 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 with EMTALA, which requires emergency care be provided without regard to the patient's ability to pay?

7. 7 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

8. 8 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?

9. 9 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?

10. 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. 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. 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. 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? Why does this matter?

14. 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? What is their constitutional standing injury? 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? Does their case depend on the welfare of the suckers? Is the best science provision also about economic impacts of the act?

15. 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. 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. 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. 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?

18. 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. 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. 20 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? Are there situations where the action is "Committed to agency discretion" and thus not subject to review?

21. 21 Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) 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.

22. 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. 23 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?

24. 24 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)

25. 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. 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. 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. 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. 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. 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. 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. 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. 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. 35 Stopped here

36. 36 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

37. 37 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 Still an issue: who do you count?

38. 38 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

39. Exhaustion of Administrative Remedies

40. 40 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? Does Wooley affect this in LA?

41. 41 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.

42. 42 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

43. 43 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?

44. 44 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?

45. 45 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. Why does it matter whether the APA applies? Firing is in force during appeal 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)

46. 46 What if You Screw Up Your Administrative Appeal? Assume that a person tried to exhaust the administrative appeals, but makes a procedural error such as missing a deadline, and the appeal is dismissed by the agency Since there is no further process available at the agency, has he exhausted the agency remedies? Has he gotten a final judgment from the agency on the merits?

47. 47 Administrative Issue Exhaustion Must each issue that will be appealed to the courts be raised at the agency level? What about in a regular trial: If you do not present an issue to the trial court - other than a jurisdictional issue - can you raise it at the first time on appeal? What if you raise some issues with the agency, but not others - can you then appeal the ones you raised?

48. 48 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