1. Judicial Review of Agency Action: Getting into Court Courts review a relatively small percentage of agency decisions Courts set aside an even smaller percentage of agency decisions

2. Judicial Review Whether the case may be taken to court? When judicial review is appropriate? What kind of review the court will perform on the merits?

3. Judicial Review: The Whether Issues Jurisdiction Form of action Sovereign immunity Preclusion Standing

4. 1. Judicial Review: Jurisdiction Recall your fundamentals!! Federal courts are courts of limited jurisdiction Limits on that jurisdiction: Article III of the Constitution State courts are usually courts of general jurisdiction

5. Jurisdiction (cont’d) No one gets into the pearly gates of federal court unless Congress says so Congress must have enacted a statutory permission slip Every case filed in a federal court requires a jurisdictional statute The statutes are found in U.S.C.

6. Jurisdiction Look in essentially two places for authority The enabling act The general jurisdictional statutes: 28 U.S.C. 1331 or 28 U.S.C. 1337

7. Jurisdiction (cont’d) Enabling act jurisdiction Defects in subject matter jurisdiction are fatal: they may be raised ANY TIME IN THE COURSE OF LITIGATION Most attorneys will invoke as many jurisdictional predicates as plausibly relate to their case Be careful because the enabling act directs you to the court

8. Jurisdiction (cont’d) 28 U.S.C. 1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

9. 2. Venue, Service of Process and Proper Form of Action Again, look to the statute for venue If statute is silent, then 28 1391(e) The defendant resides A substantial part of the events or omissions giving rise to the claim occurred, Or a substantial part of property that is the subject of the action is situated or The Plaintiff resides, if no real property is involved

10. Service of Process Usually uncomplicated, but don’t forget it If against federal agency, then Rule 4: Service on the USA in the district in which the action is being brought and service by certified or registered mail on the Attorney General in Washington If against an agency or officer of the U.S., the plaintiff must serve the U.S. Attorney, the Attorney General and the agency

11. Injunctive Relief Section 703 of the APA: any applicable form of legal action including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus.”

12. 3. Sovereign Immunity Larson v. Domestic and Foreign Commerce Corp. 337 U.S. 682 (1949): permitting a lawsuit against an agency official in his personal capacity, based on “unconstitutional administration.” In 1976, Congress amended Section702 of the APA to eliminate the defense of sovereign immunity: Plaintiffs seeking “other relief”

13. Sovereign Immunity Seeking money damages—Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971): But recovery is only against the employees and may not be satisfied out of the federal treasury.

14. 4. Preclusion What if there is a statute outside the APA that expressly prohibits a court from reviewing an agency decision? Most statutory preclusions appear on the face of the statute VA used to have a blanket preclusion

15. Preclusion of Action Committed to Agency Discretion Section 701 Section 701(a)(2): committed to agency discretion preclusion Section 706 review for “abuse of discretion”

16. Committed to Agency Discretion Whether broad agency discretion already exists? The expertise and experience necessary to understand the subject matter The managerial nature of the agency The propriety of judicial intervention and the ability of a court to insure correct results

17. Committed to Agency Discretion The need for informality and speed in agency decisions; and/or Whether other controls on agency discretion exist?

18. OVERTON PARK Two applicable statutory provisions: 1. the Department of Transportation should consider alternatives to building the highway through the park AND 2. Any decision to build through the park should include thorough planning to minimize environmental disruptions

19. Discretion to take no Agency Action 1.Discretion Not to Make a Rule 2.D.C. Circuit suggests now that agency refusals to make a rule are not entitled to any presumption of non-reviewability

20. 2. Discretion Not to take Enforcement Action Agency refusals to pursue enforcement cases are not reviewable Thus, the presumption to be applied in cases of agency refusal to pursue enforcement actions is just the opposite of the Overton Park presumption Any agency’s refusal to take enforcement action is presumptively NOT reviewable

21. 5. Standing Springs from the case and controversy requirement in Article III, Section 2 of the U.S. Constitution Baker v. Carr, 369 U.S. 186 (1962): “personal stake in the outcome” test This test is the bottom line for federal court standing Minimum showing necessary for a plaintiff to survive a motion to dismiss

22. Staying in Court: Intermediate Issues Does the agency need to take a look at the dispute before you go to Court? If yes, better get this resolved before go to Court, or …. Have you exhausted administrative remedies? Is your matter ripe for resolution?

23. Judicial Review: On the Merits The final stage of judicial review Read Section 706

24. The 706 Options A court has the power to “decide all relevant questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of the terms of an agency action.”

25. Court review: Options Arbitrary and capricious An abuse of discretion Or otherwise not in accordance with the law; or is Contrary to constitutional right, power, privilege or immunity, or In excess of statutory jurisdiction, authority or limitations; or Short of statutory right OR

26. Court review: Options Without observation of procedure required by law; Unsupported by substantial evidence [in a 556, 557 case]; Unwarranted by the facts [in a de novo court proceeding].

27. Overton Provides an understanding of how the Court with deal with agency action that is neither rulemaking nor formal adjudication Explains parameters of APA Section 701(a)(2)(action committed to agency discretion and thus precluded from judicial review) Says a lot about Section 706

28. Overton (cont’d) Reviewing court is required to make a through examination of the entire record “Hard look” doctrine “Hard look” doctrine flows from Section 706--obligates a court to “review the whole record” What does this mean? The entire record?