1. Access to Judicial Review

2. 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

3. 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?

4. 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 )

5. 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.

6. The Role of Congress Except for the original jurisdiction of the United States Supreme Court that is in the constitution, and the constitutional requirement for a case and controversy, everything else is statutory Congress creates, and can limit, jurisdiction and standing, with in the constitutional limits

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. Why will this always give you jurisdiction in a federal agency action? If the agency enabling act contains a provision controlling jurisdiction, it preempts § 1331. Can Congress remove jurisdiction?

8. Where do you file? 28 § 2342. Jurisdiction of court of appeals http://biotech.law.lsu.edu/cases/adlaw/statutes/28 usc2342.htm http://biotech.law.lsu.edu/cases/adlaw/statutes/28 usc2342.htm What sort of actions are usually reviewed by circuit courts? What is the rationale for having agency cases heard in the courts of appeals?

9. OSHA Example Enabling act says that actions may be brought under 29 U.S.C. § 655(f) in circuit courts The statute is silent as to whether this is the exclusive source of jurisdiction Can you fall back to 1331 for an action covered by 655? Could you use 1331 to get into district court about a suit over an OSHA action not covered by 655? What are the conflicting policies?

10. Standing Constitutionally Required Standing All cases must meet this standard While the United States Supreme Court can interpret what it means, the court cannot abolish it Prudential standing Additional statutory or judicial limits over the constitutional requirements

11. Constitutionally Required Standing Injury in fact http://biotech.law.lsu.edu/cases/adlaw/Lujan_v_ Defenders.htm#18 http://biotech.law.lsu.edu/cases/adlaw/Lujan_v_ Defenders.htm#18 Injury Causation Redressability

12. 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?

13. Example: Dam that Mouse! Corps wants to build a dam that will destroy a scenic river and the habitat of an endangered mouse Sally has hiked there and will in the future John has spent his life defending endangered species, but has no future plans to visit this area. Who has standing and why?

14. 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?

15. Risk as Injury The courts have accepted a theoretical risk of harm, such as increased risk of cancer from a landfill, as injury Louisiana Environmental Action Network v. U.S. E.P.A., 172 F.3d 65 (D.C. Cir. 1999) Risk posed by toxic wastes in landfill Is this a real risk? What are the policy implications? What could the effect be on the NO cleanup?

16. Procedural Injury What is a procedural injury? Is the procedural injury enough for standing? Why not? What else do you have to show?

17. Example - Requirement that the Corps Coordinate with other Agencies What was necessary for standing in the Corps permitting example where the corps did not do the required statutory coordination with other agencies? What if it were a remote, unpopulated area? Might this leave no with standing to object in court?

18. Example - FERC FERC allows previously banned ex parte communications What is the injury? What is your argument for standing? Who can claim standing?

19. Example - Denial of a Required Public Hearing The Corps skips a required public hearing when issuing a permit How is this different from skipping a public hearing to take comments on a rule? How would Justice Scalia read the standing requirement? How do some commentators argue that the Defenders of Wildlife have suffered a particularized injury, and thus have standing?

20. 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?

21. 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?

22. Procedural Violations and Causation: Agency 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?

23. 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?

24. 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

25. 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, “[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?

26. 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?

27. 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.

28. 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?

29. 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

30. 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?

31. 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?

32. 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

33. 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?

34. 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?

35. 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 taxes itself?

36. 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