Reviewability - general

1. Reviewability - general • APA Sec. 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 Sec. 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 a default statute in this situation – it applies when the organic statute does not contain it’s own “special review provision” governing the availability of judicial review.

2. 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 Sec. 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 • Agency activities are usually going to fall into this definition. • So what’s going on in Norton?

3. 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 WSAs w/ “wilderness characteristics.” 42 USC Sec. 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. • BLM uses a resource management plan to help manage lands. • SUWA sued BLM & Sec’y for failing to act to protect Utah public lands (under Sec. 1782(c) obligation) from damage caused by off-road vehicles. • SUWA sought declaratory & injunctive relief

4. Norton v. SUWA – the legal claims • Plaintiff wants court to compel agency action withheld as required under APA Sec. 706(1) • SCT rejected P’s claim because could point to no “discrete agency action” BLM was required to take • When is agency conduct sufficiently “discrete” so as to amount to “agency action?” • Planning documents; guidelines for future conduct are apparently NOT agency action for these purposes • Even if you think agency action existed in Norton, was SCT still right not to grant an injunction? • Why would granting relief (in the form of an injunction or declaration) be problematic? • Bottom line re agency action: • Much agency action falls w/in APA Sec. 551(13) but courts sometimes 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

5. Exceptions to Judicial Review - Preclusion • APA Sec. 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?

6. Johnson v. Robison • 38 USC Sec. 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 identified also served by precluding the constitutional arguments raised by plaintiffs?

7. Johnson v. Robison, cont’d • SCT ruled that Robison’s constitutional challenge was not precluded primarily based on statutory interpretation and legislative history. • Would this Court also have been as concerned if the statute at issue clearly precluded ALL claims, even constitutional claims: • 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 even review of constitutional questions? • Or is Justice Scalia right in Webster that the Court entertains doctrines precluding judicial review of constitutional questions all the time so statutory preclusion should also be okay?

8. Exceptions to judicial review - committed to agency discretion by law • APA Sec. 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?

9. 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 Sec. 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 standard 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

10. Webster v. Doe – what standard is SCT using? 50 USC Sec. 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”? • If Overton Park had “law to apply” why doesn’t this statute? • Webster majority approaches the issue differently than the traditional approach: • Majority finds that phrase “deems it advisable” and structure of the statute locates unreviewable discretion in the Director re statutory claims. • Is that “committed to agency discretion by law” or a form of “preclusion”? • Justice Scalia relies on “common law of judicial review” to determine when agency action is committed to agency discretion by law. • How does that work and why does he do it?

11. Relationship between APA § 701(a)(2) & APA § 706(2)(A) – a possible reason for Justice Scalia’s proposed approach • APA contemplates that agency action can be challenged as “arbitrary and capricious” under Sec. 706(2)(A). • How, then, can the APA say that the some decisions have been committed to agency discretion so that they are “unreviewable”? • The general take on the differences (see Chaney p. 277): • APA Sec. 706(2)(A) challenges – Congress has provided sufficient standards to which agency is supposed to adhere that allow judges to make an assessment (i.e., “prudent” & “feasible”) • Question for court is whether agency acted arbitrarily or capriciously • APA Sec. 701(a)(2) – no clear standards exist so agency has “unfettered” discretion • Court review is ineffective or impossible so agency decision is unreviewable • Anyone see a problem with this?

12. Committed to agency discretion – failure to institute enforcement proceedings • Heckler v. Chaney plaintiffs sought to compel FDA to institute enforcement proceedings under FDCA. • Ps alleged certain drugs used in lethal injection death sentences were “unapproved uses” of “approved drugs” and violated “misbranding” & approval requirements of the FDCA. • Ps sought order forcing FDA to institute enforcement proceedings: • FDA disagreed as to whether such regulation was in the scope of its jurisdiction. • FDA also argued that it had discretion to decline to prosecute. • SCT was concerned with the extent to which FDA’s decision not to exercise its enforcement authority was reviewable.

13. Heckler v. Chaney reasoning • SCT found decision not to institute enforcement proceedings was committed to agency discretion under APA Sec. 701(a)(2). • FDA’s refusal to enforce was unlike a decision to release highway funds in Overton Park. • Release of funds is an affirmative act whereas decision not to enforce is a discretionary decisions with • A complicated balancing of factors • Involving decision NOT to exercise coercive power • Like a decision not to prosecute • SCT: Decision not to act is presumptively unreviewable. • Presumption may be rebutted were statute provides guidelines for agency to follow in exercising enforcement powers.

14. Agency prosecutorial decisions – rebutting the presumption of unreviewability • Bachowski– Sec’y did not institute a civil enforcement action against a labor organization to set aside an invalid election despite language in the statute that Sec’y “shall” bring such an action after finding probable cause that a violation occurred. • SCT said agency’s decision not to institute a suit was reviewable. • Chaney gives this as an example of a statute that provides guidelines in exercising enforcement powers • Leedom– NLRB certified union to represent professional and non-professional employees. Statute precluded union from representing conflicting groups. • SCT found that the agency’s decision to certify union was reviewable (although generally such certifications were not reviewable) because it was in clear violation of the governing statute.