1. Access to Judicial Review
Part IV

2. Problems of Timing
Has the agency done something that has affected your rights in a way that allows you to challenge the action in court?
Doctrine of Finality
Doctrine of Exhaustion
Doctrine of Ripeness
This is related to our question in distinguishing guidance from rules requiring notice and comment:
Have your client’s rights been changed?

3. The First Question: Has there been an the Agency Action?
The APA defines ‘‘agency action’’ as ‘‘includ[ing] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.’’ 5 U.S.C. §551(13).
‘‘failure to act’’ means the failure to take one of the discrete actions listed in the definition of ‘‘agency action.’’
Absent specific statutory direction, can plaintiffs force the BLM to protect potential wilderness areas from human use?
Is failure to act an agency action?
Is this like a mandamus question?

4. 5 U.S.C. § 704. Actions reviewable
Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.
A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.
Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsiderations,
or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.

5. Is There a Final Agency Action?
Bennett v. Spear, 520 U.S. 154, (1997)
It must be the consummation of the agency process
It must affect legal rights or have legal consequences

6. Federal Trade Commn. v. Standard Oil Co. of California, 449 U. S
FTC brings a complaint against Standard Oil for 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

7. Opinion Letters Are they final actions? Who are they final for?
Are the prospective or do they require a change in conduct?
Do they trigger penalties?
Should they be notice and comment rules?

8. National Automatic Laundry and Cleaning Council v. Shultz, 443 F
National Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971)
An association asked how the agency would interpret a new law
The secretary provided:
Detailed explanation
General direction not based on individualized facts
In this case, the court found that the opinion was sufficiently specific and from a high enough level to affect the plaintiff's rights.
This was What would you argue today?

9. Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept. v
Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept. v. Dole, 948 F.2d 953 (5th Cir. 1991)
Is an opinion final action as to third parties?
The opinion was to an individual party, based on that party's specific facts.
These are like IRS letter rulings and OIG opinions
The plaintiff was a third party who wanted to challenge the opinion.
The court found that this was not a final agency action, at least as to other parties.
If it had been, what would your challenge have been?

10. Opinion Letters on Current Conduct
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 as to the parties because it required an immediate change in behavior.
Western Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659 (7th Cir. 1998)

11. Army Corps of Engineers v. Hawkes Co., 578 U.S. ___ (2016)
Are 404 jurisdictional determinations final agency action?
JD means that the Corps has found your land is wet, with all the attendant legal restrictions.
Courts were split over whether this was final agency action.
The United States Supreme Court found that these affected the land owner’s rights, and thus were final.

12. 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: How do you count?

13. Finality Wrap-up Is the agency action directed to your client?
If not, what is your argument as to why it affects your client’s interests?
Is it complete, or an intermediate action?
Does it have legal consequences, i.e., will it require your client to change its behavior?
Does it require an immediate change?
If it is general, should it be a rule?

14. Exhaustion of Administrative Remedies
When is the agency done with you?

15. Exhaustion of Administrative Remedies
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?
This is a source of significant malpractice
Some of the Katrina levee cases were dismissed because the plaintiffs did not exhaust their remedies before filing suit.

16. 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.
Can the agency enforce an order and still require exhaustion of agency appeals process?
Why would this be logically inconsistent?
(There is a common law exhaustion discussed later for non-APA cases.)

17. Is Exhaustion Required by Statute or Regulation?
The key question under the APA 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
Does the rule have to say exhaustion, or is it implied by having the process?

18. 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 you request an administrative appeal before going to court?
Remember 704

19. Common Law Exhaustion: Portela-Gonzalez, 109 F.3d 74 (1st Cir. 1997)
Plaintiff is fired from a civilian Navy job
The APA does not apply by statute
Plaintiff appeals through 3 levels, but skips last level.
Firing is in force during appeal
What is the common law of exhaustion?
Is the APA narrower?
Do you have a final ruling if there is agency process left?
Just knowing that you are going to lose through the agency process is not enough.

20. Exceptions to Common Law Exhaustion
Will requiring exhaustion prevent the court from properly reviewing the action?
Is the agency enforcing its ruling and will this cause 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?
McCarthy v. Madigan, 503 U.S. 140 (1992)

21. 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?
Can you go to court without a final ruling from the agency?
Can you get to the Supreme Court in an Article III case if you screw up the appeal to the Circuit Court?

22. 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?

23. 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

24. Issue Exhaustion in Rulemaking
When do parties have a chance to object to provisions in a rulemaking?
Should they be required to make their objections during the comment period if they plan to challenge the rule later in court?
Is this analogous to an administrative appeal of an order?
What if the party did not raise the issue in a comment, but someone else did?

25. Warning – Ripeness and Finality Can Blend Together
Is the Case Ripe?
Warning – Ripeness and Finality Can Blend Together

26. Ripeness
"The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration."
If the case is not ripe, you do not have a case and controversy
Ripeness is not codified in the APA, so it remains a jurisprudential doctrine
Ripeness is jurisdictional, so it can be raised at any time

27. Abbott Round II

28. Was Abbott "Ripe"?
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
What is the impact of this regulation?
What is the risk of enforcement?

29. 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

30. What are the Equitable Factors? (Think injunction standards)
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?
Does the court have enough information to determine the issue?
What are the special factors in the drug business?

31. 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. . .

32. 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?

33. Example: EPA Smoke Spotters
The “credible evidence” rule allowed visual observation of smoke from a smokestack to be used as evidence that a person was violating its Clean Air Act requirements
Plaintiffs contest the action, saying it was beyond agency authority
Is this more like Toilet Goods or Abbott Labs?
Do plaintiffs have to change their behavior?

34. Was the Dispute Ripe in National Automatic Laundry?
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
Without this detail, would it be a rule?

35. 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
This is a safe harbor, it is not necessarily the safety limit that would trigger sanctions if exceeded

36. Whose Claim is Ripe?
You represent consumers who believe that the new (higher) action levels are dangerous
Is the action ripe as to your claim?
Can it get riper?
What about manufacturers who think the level is too
low?
How are they different from consumers?
What new info might the court get by waiting until enforcement?

37. What if the Agency Changes a Permit Process to Your 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?
What if the forest service loosens up the permit process for clear cutting, but there must be a timber sale with public input before the timber can be cut?

38. Ripeness Recap
Ripeness is the other side of exhaustion of agency remedies
Enforcement actions, permits, and other affirmative agency actions against your client
If you have done everything the agency requires, then you have exhausted agency remedies
Your case is ripe

39. APA - When Can You Go to Court Without Exhausting Agency Actions?

40. The agency action is unconstitutional or exceeds the agency's legal authority
Rulemaking - Facial Challenge
How does this differ from a challenge that the record is not adequate?
You have to convince the court that the rule does not have a legal application
You have to convince the court that your client will suffer significant harm if it must wait for enforcement
If you fail, then you have to wait until the agency acts against your client
Agency enforcement actions let you go for an injunction or other attack on the agency authority

41. Impossibility of Agency Remedy
The agency does not offer the remedy you seek
You want money damages and the agency remedies only offer that the agency will stop enforcement actions
Congress can require you to still exhaust your agency remedy
The agency is biased against your client
Just showing that you are going to lose is not enough
Remember from previous chapters how hard this is to prove.

42. 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 chance to rule for the country before hearing an individual dispute
Often resolves the dispute, so no judicial remedy is necessary

43. End of Chapter 6