Access to Judicial Review

1. Access to Judicial Review Part II

2. Procedural Violations and Causation:Agency Fails to do an EIS for a Dam • How does failing to do the EIS make the final agency action – building the dam – illegal? • Do you have to show that that they done the EIS, that the permit for the dam would not have been issued? • Is this partially driven by the nature of the EIS, i.e., that it is only informational and does not directly drive decisionmaking? • Why does this make it difficult to show that an EIS would affect the outcome of agency decisiomaking?

3. Confusion with Harmless Error • 5 U.S.C. § 706 (Civil procedure) • “In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.” • Some courts have required plaintiff to show it is substantially probable that the procedural breach will cause the injury • Is this a proper standard for a procedural violation, such as failing to do an EIS? • Must the plaintiff show that it is more than theoretically possible for the violation to affect the outcome?

4. What type of Causation? • Must the government’s violation directly affect plaintiff? • Does the EPA’s failure to regulate greenhouse gasses directly affect MA’s coast line? • What directly affects the coast? • Does the EPA’s regulatory failure contribute to the climate change that affects the ocean?

5. Redressability • You have to be able to show that the remedy you seek from the court would address your problem • If you have stated a concrete claim for injury to your client, you probably have also met this standard • The agency must have the power to grant your remedy • The remedy must address your client's problem

6. Does the Remedy Help Your Client? • 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 enough charity care • Why is the plaintiff asking for this remedy? • Would denying the exemption increase charity care? • What if the plaintiff had shown that hospitals will do about anything to keep their nonprofit status? • What if plaintiffs could show that the exemption is so valuable that hospitals always cave in before losing it?

7. Procedural Violations and Redressability • Assume you have stated a real procedural injury • Is there still a redressability 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 effect if the procedure is fixed? • What if, as in global warming, the effect of the agency action would be minor?

8. Representational Standing • When can associations bring actions on behalf of their members? • At least one member must have standing • It must fit the organizational mission • The remedy must not require the participation of individual plaintiffs, beyond the standing analysis • Injunctive relief or declaratory judgments • Why is this important for environmental and poverty action groups • Why might businesses with money still need it?

9. (Juris)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.

10. Injury to All • The usual remedy for “injury to all” cases is legislative or executive, not judicial. • Taxpayers, for example, have very limited standing as such. • In the FEC case, everyone was denied the information about the contributions. There was standing because Congress said in the enabling legislations that ‘‘any party aggrieved’’ by a Commission denial of its complaint could obtain judicial review of the denial. • In the absence of specific statutory authorization, most injury to all cases will not get standing.

11. Zone of Interests • 5 USC 702 • 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.  • Courts have read this to narrow claims to what the court determines is the purpose of the statute. • Similar to the test in torts for negligence per se

12. 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? • Why did this break down? • Were there any postal worker unions when the law was passed? • Why does this matter?

13. 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. • Why do they want the water released? • What is the Endangered Species Act (ESA) problem? • What is their constitutional standing injury? • Why were they able to use the provision that the agency rely on the best data? • Does their case improve the welfare of the suckers? • How does their claim improve the application of the ESA?

14. 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. • Not overruled, but maybe out of date.

15. 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?

16. 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. • How is plaintiff's interest different from the plaintiff in Hazardous Waste? • Did the statute allow a product to be approved if it affected health or the environment? • Why does the specificity of the standard help plaintiff's case? • Was Hazardous Waste different because the rule which was being limited could be implemented in many different ways, some of which might have benefited plaintiffs but not the environment? • Or is this just confusion in the courts?

17. 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 non-profit exception and the underlying law? • Why might this further the purpose of the law?

18. What is the Agency Action? • The APA defines ‘‘agency action’’ as ‘‘includ[ing] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.’’ 5 U.S.C. §551(13). • ‘‘failure to act’’ means the failure to take one of the discrete actions listed in the definition of ‘‘agency action.’’ • Absent specific statutory direction, can plaintiffs force the BLM to protect potential wilderness areas from human use? • Is failure to act an agency action? • Why do you get to contest a refusal to make a rule?

19. Zone of Interests Review • Is the plaintiff's interest directly addressed by the statute or reg? • Is the plaintiff's interest congruent with the statute, so that enforcing it furthers the purpose of the statute or reg? • Courts have bought this, but it is shakey • When can the party contest whether the statute or reg is correctly applied - ranchers/Honeywell? • Still must show direct impact

20. Statutory Preclusion of Judicial Review • Congress has the power to limit judicial review of agency actions • Subject to constitutional limits • What if Congress is silent on the availability of judicial review in a particular statute? • Does "Committed to agency discretion" mean that the action is not subject to judicial review?

21. Complete Preclusion of Judicial Review: 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)

22. Is there Judicial Review at All? • Abbott Labs is an early foundational case in administrative law. We read Abbott Labs for two issues. The first is whether there is any judicial review at all, in the absence of specific congressional authorization. • The second issue is the timing for review, i.e., was the issue ripe?

23. 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?

24. "As Applied" (Post-Enforcement) Review • Why does the agency prefer post-enforcement review? • What happens with compliance? • What additional information does the court get when it requires the plaintiff to wait until there is enforcement? • What if the penalties are so Draconian that no one will risk enforcement?

25. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) - Is There Review? • This was a dispute over the authority of the FDA to require the generic name on prescription drug labels • 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 of other actions and this was not included in the list • The Court found that judicial review is favored, and that it would not hold it precluded unless the congressional intent was clear.

26. 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 • This might also be seen as a zone of interest question.

27. Does Committed To Agency Discretion By Law Mean No Judicial Review? • 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

28. 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

29. Heckler v. Chaney, 470 U.S. 821 (1985) - Lethal Injection Case • The FDA Act directs the agency to require that drugs be approved for a specific use 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. • Later cases question whether the FDA has the authority to regulate post-sale use.

30. Decisions on Rulemaking Petitions • The court distinguished a decision to refuse to amend a rule as different from prosecutorial discretion to do enforcement, allowing judicial review of these decisions. • American Horse Protection Assn., Inc. v. Lyng, 812 F.2d 1 (D.C. Cir. 1987) • The review is very narrow – remember Mass. v. EPA.

31. 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 • Lead to controversy with Homeland Security Act • Court says that the plaintiff's constitutional law claim can be reviewed because no agency is above the constitution • Dissent says this makes no sense because it undermines the agency discretion

32. Lincoln v. Vigil, 508 U.S. 182 (1993) • Indian health service has the discretion to decide how to spend certain funds • This is a classic earmark - funds with a non-statutory direction on how to spend them. • 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.