Constitutional standing & Mass. v. EPA – the confusion continues

1. Constitutional standing & Mass. v. EPA – the confusion continues • Injury-in-fact – P must show that she herself is or will be injured (per Lujan – cognizable injury isn’t enough) • Majority says “widespread” harm is still harm even if many suffer from it. Is harm ever too widespread to be “particularized?” • To what extent does future harm “not count”? • Mass. dissenters argue that possible future injury isn’t enough (some question as to whether P’s had shown existing harm) • When can P’s bring lawsuits in the face of scientific uncertainty & delayed effects? What kind of certainty is required? • Absent current/certain harm, is P’s injury too much like “procedural” harm? • Causation • How direct must D’s actions be in the chain of causation? If they are one cause in a complex web is it enough? • Redressability • Must court’s order actually reduce harm to P (i.e., saving coastline) or simply result in D taking steps that will reduce the risk to P?

2. Associational (representational) standing • Organizations are often P’s in actions against agencies • Organizations can sue in their own right if gov’t action injuries them “as organizations” • Organizations can also bring lawsuits on behalf of their members. Most of the cases in this section involve such suits. 3 conditions must be met: • A member satisfies constitutional standing • Purpose of the organization is relevant to the lawsuit – aka germaneness requirement • The lawsuit doesn’t require individual participation of members of the org. - e.g., it seeks injunctive/declaratory relief

3. Congressional changes to standing • Special review “standing” statutes. • Endangered Species Act: “Any person may commence a civil suit on his own behalf” to enjoin violations of the ESA • Such provisions CANNOT give P’s standing if they otherwise lack of constitutional standing • Lujan makes clear that P’s must have constitutional standing in order to file suit. • BUT – such provisions do eliminate prudential standing limitations (i.e., judge-made rules limiting standing) • Ex: The 3rd requirement in associational standing that ass’n seek equitable relief. Special review provision CAN provide for associations to seek damages

4. The Timing of Judicial Review • Sometimes courts will consider a party’s lawsuit against an agency to be premature. They, thus, may rely on any number of doctrines to dismiss the suit: • Ripeness • Finality • Exhaustion of Administrative Remedies

5. Ripeness • Defined: Whether P can show a particularized and concrete injury sufficient to justify bringing the case to court at this time. • Ripeness doctrine has its roots in Article III’s requirement of “concrete” cases & controversies. • But Abbott Labs also treated it as a discretionary aspect of the Court’s equitable jurisdiction. • Even if a case is “ripe” under Article III, a court can find it “unripe” for prudential reasons • This latter “ripeness” is usually an issue with pre-enforcement challenges to rulemakings. • Prior to Abbott Labs, parties generally couldn’t challenge agency regs until they were applied to them – Abbott Labs changed all this

6. Abbott Laboratories v. Gardner – the facts • FDCA required drug manufacturers to print generic name on drug labels and advertisements • FDA issued regulation requiring generic name to be put on “each appearance” of the brand name • Drug manufacturing industry wanted to challenge validity of the regulation before complying with it or refusing to comply with it, claiming that the FDA had exceeded its authority under the statute • Why would the gov’t fight so hard claiming that the challenge was unripe at the pre-enforcement stage? Wouldn’t it want to resolve this issue in order to proceed in enforcement proceedings? • Non-mutual collateral estoppel principles do not apply to the government as a litigator – i.e., gov’t can relitigate identical issues it has previously lost against new parties

7. Abbott Lab’s 2-part test (and application): • Are the issues fit for judicial decision? (Yes) • Purely a question of law (easy to resolve pre-enforcement) • Agency’s action is final (final rule after formal process – authoritative interpretation of the statute) • No benefit in reviewing multiple claims by manufacturers • Does withholding court consideration impose hardship on the parties? (Yes) • Ps must incur immediate cost to print new labels & ads to comply with new rules OR risk criminal/civil penalties by continuing as is • Requiring drug industry to challenge rules in an enforcement action could hurt consumer confidence, which is particularly important in this area • There is little harm to gov’t by delaying enforcement while resolving this issue. Resolution of the issue first will eventually speed enforcement and compliance

8. Toilet Goods Assn v. Gardner – an unripe case • Pre-enforcement challenge to FDA rule authorizing suspension of “certification” to manufacturers of cosmetics who deny FDA inspectors access to facilities, etc. Manufacturers claimed that rule exceeded FDA’s rulemaking authority. • SCT – action not ripe under Abbot Labs criteria • Prong 1 - the issue is purely legal BUT unfit for judicial decision – Why? • Prong 2 - why does withholding court review not impose hardship in the same way as Abbott Labs?

9. Finality • The doctrine of finality ensures that an agency has completed an action prior to court review • An agency action is considered “final” if it is: • the consummation of the agency’s decision-making process & and not interlocutory or tentative • an agency action by which the rights and obligations of parties will be determined – i.e., from which legal consequences will flow. • APA §704 requires (mostly) that agency actions be final before they can be appealed. Special review statutes also often contain finality requirements. • Abbott Labs incorporated the finality req’mt into it’s ripeness inquiry because it involved pre-enforcement review of rules.

10. More on finality - essentially “ripeness” outside of the pre-enforcement context • Some finality issues are clear: • Final rules or orders after binding adjudications are final (assuming no exhaustion issues – see below). • What about actions short of these? • Abbott Labs noted that SCT has determined finality “pragmatically.” • Is the action is (1) informal, (2) an interpretation of a subordinate official, (3)tentative. Depending on how these factors coalesce, An action short of a rule or adjudication may or may not be final. • Compare: • Letter ruling in 1st Nat’l Bank (p. 361) – letter from Comptroller of Currency (regulatory authority over banks) who denied bank permission to engage in action was like denial of a license which could have severe consequences. Letter was final. • Opinion Letter in Air Brake Systems (p. 361) – opinion letter from NHTSA that P’s braking system didn’t meet agency’s standards was not final because it was tentative and based on incomplete information. Letter also was non-reviewable and lacked legal consequences.

11. Exhaustion of remedies Exhaustion: The requirement that parties challenging agency action pursue all available remedies within the administrative structure before they purse a lawsuit in court.

12. When is exhaustion required? Special Review Statutes • If a special review statute pertaining to a particular agency REQUIRES exhaustion of administrative remedies, then a party must exhaust those remedies. • Example 15 USC § 3416(a)(2): Any person aggrieved by any order issued by the Commission in a proceeding under this chapter to which such person is a party may apply for a rehearing within 30 days after the issuance of such order. . . . • No person may bring an action under this section to obtain judicial review of any order of the Commission unless - (A) such person shall have made application to the Commission for rehearing under this subsection; and (B) the Commission shall have finally acted with respect to such application.

13. When is exhaustion required absent a special review statute? When the basis for lawsuit is violation of federal law & there is no special review statute: APA § 704: 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.... 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.

14. Exhaustion under the APA after Darby v. Cisneros • SCT held that APA § 704 means what it says, which translated is: • An agency action is final & appealable to a court once the party has exhausted all administrative remedies expressly required by a statute or regulation. • Litigants need not exhaust permissive administrative remedies. • In Darby, HUD regulations provided that a hearing was to be held before an ALJ and that ALJ’s determination was to be final unless the Sec’y of HUD reviewed the determination as a matter of discretion. • Parties were NOT required to petition Sec’y prior to filing lawsuits as APA § 704 requires exhaustion only of expressly required remedies.

15. Exhaustion when the claim is not statutory • Before Darby, as a matter of common law courts routinely implied exhaustion requirements even if there was no special review statute mandating exhaustion. • That can no longer happen due to Darby’s interpretation of APA § 704 • BUT common law exhaustion principles still may apply in certain instances, especially when actions arise under the Constitution rather than statutes.

16. Common law exhaustion principles in a nutshell • When the claim involved is based on the common law (including the Constitution), courts generally insist that litigants exhaust anyinternal review or rehearing procedures – even if they are discretionary/permissive • Exceptions • If exhaustion of administrative remedies will cause undue prejudice to subsequent court action • Where administrative remedies are inadequate due to doubt that the agency has the power to grant appropriate relief • Where the agency has been shown to be biased or has otherwise predetermined the issue