Reviewability - general

1. Reviewability - general • APA § 702 - Right of review • A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof • APA § 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 • Supreme Court – APA provisions create a “basic presumption” of judicial review • APA is again a default statute in this situation – it applies when the organic statute does not contain it’s own “special review provision”

2. A special review provision – the Beer Trade Commission Act: • The BTCA actually has three such provisions • Sec. 9(a) - right to seek judicial review from orders • Sec. 9(b) - right to seek judicial review from administrative penalties • Sec. 9(c) – right to seek judicial review from rulemakings • Each provision has different specifications re when to appeal and what standards govern • Example – Section 9(c) re appeals from rulemakings: • Any interested person (who) • May appeal w/in 60 days after rule promulgated (when) • To DC Circuit Court of Appeals (where) • Incorporates 28 USC Sec. 2112 as governing re filing of record with federal court • Defines record on appeal in Sec. 9(c)(2) • Gives federal court jurisdiction under the APA (Title V, Chapter 7) & specifies the standards of review that govern are from the APA – Sec. 706(2)(A)-(D) and substantial evidence for fact findings. • Excludes from review contents of a regulatory impact statement and the adequacy of the contents of a statement of basis and purpose (preclusion)

3. What Is “Agency Action”? • Litigant (individual or group) can only obtain judicial review of “agency action” • Both Sections 702 & 704 use that term • What is “agency action”? • APA § 551(13): “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 • How often are agency activities likely to fall into this definition?

4. Norton v. SUWA – the facts • Wilderness Areas – Under the Wilderness Act, “designated wilderness areas” have no commercial enterprises, no permanent roads, no motor vehicles, and no manmade structures – few exceptions • Only Congress can designate a wilderness area • Wilderness Study Areas - Sec’y of Interior can designate “Wilderness Study Areas” (WSA’s) w/ “wilderness characteristics.” 42 USC § 1782(c). • FLPMA of 1976 requires Sec’y to manage such lands so as not to “impair” their suitability for preservation as wilderness areas if Congress ever so designated them. • SUWA sued BLM & Sec’y for failing to act to protect Utah public lands (under § 1782(c) obligation) from damage caused by off-road vehicles. • SUWA sought declaratory & injunctive relief

5. Norton v. SUWA – the legal claims • Under what provision of APA § 706 does plaintiff argue the court should judge the agency’s action? • Why does the Court reject plaintiff’s claim? • Does its reasoning make sense? • Consider the ACLU v. NSA case at p. 243 – not “action”? • Is there still some reason why SCT was right here? • What did the plaintiffs want the court to do? • Why would granting relief (in the form of an injunction or declaration) be problematic? • Bottom line re agency action: • Much agency action will fall into the definition in APA § 551(13) and can be the subject of a challenge. But occasionally the courts will find that agency decisions do not amount to ‘agency action’ for purposes of legal challenges. Reasons often overlap with reasons for finding action “committed to agency discretion” – see below

6. Exceptions to Judicial Review - Preclusion • APA § 701 - Application; definitions • This chapter applies, according to the provisions thereof, except to the extent that - • (1) statutes preclude judicial review; or • (2) agency action is committed to agency discretion by law • Questions re preclusion: • Why would Congress preclude judicial review? • What does it mean for a statute to “preclude” judicial review – i.e., how do we interpret the APA preclusion provision? • What are the costs and benefits of preclusion?

7. Johnson v. Robison • 38 USC § 211(a) – The decisions of the Veterans’ Administrator on any question of law or fact under any law administered by the VA providing benefits for veterans ... shall be final and conclusive and no other official or any court of the US shall have power or jurisdiction to review any such decisions by an action in the nature of mandamus or otherwise. • Why do you think Congress passed this statute? What are the benefits/purposes of precluding review? Because there can be benefits to preclusion, SCT has been willing to find statutory preclusion but usually only where there is pretty good evidence that Congress intended it – express statutory language is usually required • Are the purposes above served by precluding the constitutional arguments raised by plaintiffs?

8. Johnson v. Robison, cont’d • Why does the Court rule that Robison’s constitutional challenge was not precluded here? • Does it’s decision suggest that constitutional challenges can never be precluded? • What if Congress enacted the following preclusion provision: • No action against the United States, the Secretary of HHS, or any officer or employee thereof, shall be brought under 42 USC Sec. 1331 [federal question jurisdiction] or Sec. 1336 [federal defendant jurisdiction] to recover any claim arising under this Act. • What problems arise with attempts to preclude all judicial review?

9. Exceptions to judicial review - committed to agency discretion by law • APA § 701 - Application; definitions • This chapter applies, according to the provisions thereof, except to the extent that - • (1) statutes preclude judicial review; or • (2) agency action is committed to agency discretion by law • Questions re committed to agency discretion by law: • What is this standard and is it workable? • How is this standard different from preclusion? • How is it different from the “arbitrary and capricious” standard? • In what kinds of circumstances does it usually apply?

10. What does it mean for “agency action to be committed to agency discretion by law”? • Overton Park v. Volpe – classic iteration of the standard: • APA § 701(a)(2) applies when “statutes are drawn in such broad terms that in a given case there is no law to apply.” • Heckler v. Chaney: fleshes this out • “Statute is drawn so that a court would have no meaningful standard against which to judge an agency’s exercise of discretion.” • What is “supposed” to be the difference between preclusion and committed to agency discretion? • Preclusion– Congress has expressed an intent to preclude judicial review through statute • Committed to agency discretion – even absent express preclusion, the lack of a meaningful statutory standard leads the court to conclude that the issue is committed to agency discretion

11. Webster v. Doe • 50 USC § 403(c) – CIA director may, in his discretion, terminate the employment of any officer or employee of the agency whenever he shall deem such termination necessary or advisable in the interests of the U.S. • Is there “no law to apply” with this statute or is there “no meaningful standard against which to judge the agency’s actions”? • Or is the Webster majority actually approaching the issue differently from the traditional approach in the first question? • Does Justice Scalia use yet a different approach from the majority or the Overton Park standard to determine when agency action is committed to agency discretion by law? Why?