Presentation Transcript

1. Committed to Agency Discretion – Agency Regulatory Inaction Courts are quite reluctant to review agency inaction regarding enforcement decisions (citing prosecutorial discretion) BUT agency inaction regarding regulation – i.e., the decision not to enact a rule – is often reviewed by the courts Consider that EPA’s refusal to enact greenhouse gas regs received “hard look” review in Mass. v. EPA As a practical matter – courts are likely to be pretty deferential to agency’s discretionary decision not to enact a rule BUT when the enabling statute specifically MANDATES that an agency regulate & the agency responds that it can’t or won’t or shouldn’t, it’s action is going to get scrutinized to make sure the agency hasn’t acted arbitrarily What is the remedy if court decides agency should have acted?
2. Committed to Agency Discretion – Resource Allocation & General Appropriations Statutes As with failure to institute enforcement proceedings, challenges to agency allocation of resources are often dismissed as unreviewable under APA § 701(a)(2). Agency decisions to cut programs (e.g., Indian Children’s Program in Lincoln v. Vigil) are rarely reviewed even if the program is contemplated in federal laws. Monies appropriated via lump sums to fund a variety of programs contemplated by federal law are left to the discretion of the agency to allocate. Agency needs to be able to “adapt to changing circumstances” Allocation decisions involve “a complicated balancing” of factors “peculiarly within [agency] expertise” Note also how similar this reasoning is to Norton’s issue of what is “agency action”
3. Committed to Agency Discretion By Law & Delegation Principles SCT’s delegation doctrine – Congress must provide an intelligible principle when delegates legislative power to an agency Don’t SCT cases reading a statute as having “no law to apply” so that an action is unreviewable and committed to agency discretion violate this principle? Quite possibly. But think about the kinds of cases where SCT has been willing to find action committed to agency discretion. Usually involve agency inaction In areas where resource allocation is an issue When issues involving rulemaking (legislative-like power) are at issue the court does find a way to review.
4. What is “standing?” The determination of whether a specific person/entity is the proper party to bring a matter to federal court. Note – rarely a problem when P is directly affected by agency action (license denial or rule enforcement). But is a harder question when P is more tangentially affected (i.e., argues that envio regs hurt their “enjoyment” of envio) Standing requirements Constitutional Standing Minimal requirement in every case – must have it to bring a federal lawsuit – but it is only the first step. Legislative standing Congressional definition of a class of Ps who can sue Only an issue with statutory claims Mainly will discuss APA standing but will see some discussion of specific statutes
5. Standing Under APA § 702 APA Section 702 provides that a person may bring a lawsuit against an agency if: He has suffered a legal wrong because of agency action OR He is “adversely affected or aggrieved . . . within the meaning of a relevant statute” Original interpretations of these provisions were heavily influenced by the common law approaches seen in the notes before Data Processing
6. Original Interpretation of APA § 702 The “legal wrong” requirement: A person had standing only if their rights as recognized by constitutional or common law were violated – i.e., when there was a breach of contract or fiduciary duty or a violation of tort law or constitutional obligation. Example: Statute authorizes FCC to grant radio broadcast licenses in a particular area. FCC wrongfully grants a license to Station A in that area. Station B already has a license and wants to challenge FCC’s grant of a license to Station A because Station A will increase competition and decrease ad revenue to Station B. “Adversely aggrieved w/in meaning of relevant statute” Courts originally required that there be a special review statute specifically broadening the rights of people to sue beyond the narrow “legal wrong” test. Federal Comm. Act – Any person aggrieved or whose interests are adversely affected by any decision of the Comm’n can file lawsuit Federal Power Act Sec. 313 - Any party to a proceeding under this chapter aggrieved by an order issued by the Commission may obtain review of such order in court.
7. Data Processing -- the facts Comptroller of Currency decided to allow national banks to provide data processing services incident to their national banking services P’s were data processing providers who alleged that the Comptroller’s decision violated Section 4 of the Bank Service Corporation Act (which stated that bank service corps should not provide anything other than bank services for banks) P’s were not directly affected by Comptroller’s ruling but they alleged that their economic interests would be adversely affected by the competition from the national banks
8. Data Processing -- the new legal standard 2-prong inquiry Did P allege D’s actions cause P injury-in-fact? This is the constitutional inquiry. Why do P’s here meet this standard? Is the “interest sought to be protected by the complainants arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee.” Why do P’s here fall w/in the zone of interests of the statute?
9. Data Processing & APA § 702 Data Processing’s “zone of interest” test collapsed the “legal wrong” & “special review” statute requirements of Sec. 702 into one inquiry: Is the plaintiff’s interest within the zone of interests the relevant statute is meant to protect? Also clear that the “relevant statute” no longer needs to be a special review statute. Plaintiff need only fall w/in the zone of interests to be protected by the substantive protections of the organic statute. Although special review standing provisions providing for citizen suits can help to illuminate “who” is w/in the “zone of interests” as well
10. “Zone of Interests” After Data Processing SCT has generously interpreted the “zone of interests” requirement Only rarely has it held someone outside the “zone of interests” Inquiry tends to focus on whether the P’s interests are at least “marginally related” and “not inconsistent” with the purposes of the statutes P seeks to enforce SCT is willing to look for implicit purposes of those statutes BUT it was unwilling to look at JUST ANY statute to find purposes. Statutes must be related to issue over which P is suing. Role of special review statute If an organic/enabling statute has a broad standing provision (i.e., “any person” can bring suit), SCT is willing to allow P to bring suit even if seems inconsistent w/ purpose of statute E.g., Bennett v. Spear (pp. 295-97)