1. Access to Judicial Review Part II

2. Statutory Preclusion of Judicial Review Congress has the power to limit judicial review of agency actions What if Congress is silent on the availability of judicial review in a particular statute?

3. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) This was a dispute over the authority of the FDA to require certain labeling changes on prescription drugs, 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 and this was not included The Court found that judicial review is favored, and that it would not hold it precluded unless the congressional intent was clear.

4. 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

5. 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)

6. 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?

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. Final Agency Action

14. 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

15. Federal Trade Commn. v. Standard Oil Co. of California, 449 U.S. 232 (1980) FTC finds that Standard Oil is engaging in anticompetitive practices Sound familiar? Standard wants to appeal this Can be used in private actions Court says this alone does not have legal consequences Standard must wait until the agency brings an enforcement action

16. 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

17. 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

18. 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

19. 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

20. Exhaustion of Administrative Remedies

21. 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? How does Wooley affect this in LA?

22. 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.

23. 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

24. 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?

25. 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?

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

27. Administrative Issue Exhaustion 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

28. Ripeness

29. Is Abbott "Ripe"? Ripeness deals with whether the case and controversy is sufficiently far along that the court has enough information to intervene 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?

30. 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

31. What are the Equitable Factors? 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? Who will get hit by enforcement? What are the special factors in the drug business?

32. 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...

33. 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?

34. 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?

35. 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

36. Stopped Here

37. What about Compliance Orders? An order to a specific party to obey the law Based on the agency's view that the party is not in compliance with the law Not self-enforcing - the agency must bring a separate enforcement action to force compliance Is this an appealable final action? Is it ripe?

38. 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 You represent consumers who believe that the new (higher) action levels are dangerous Is the action ripe as to your claim? What about a manufacturer? How are these different?

39. 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?

40. Ripeness Review 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 exhausted agency remedies Your case is ripe

41. When Can You Go to Court Without Exhausting Agency Actions?

42. The agency action is unconstitutional or exceeds the agency's legal authority Rulemaking - Facial Challenge 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

43. 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 go anyway The agency is biased against your client Just showing that you are going to lose is not enough

44. Is there a Final Agency Action? Most of the hard cases involve agency actions that may put your client at risk, but are not enforcement actions and do not have set appeals standards In general, you have to show that your client's rights are significantly impacted and that there is a real threat of enforcement. Opinion letters are a good example Is it directed to your client? Is it specific enough to force changes in your client's behavior? Is there a real threat of enforcement?

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

46. End of Chapter 6