Access to Judicial Review

1. Access to Judicial Review

2. Exam Notes • In class • If you want to use a computer, you have to get with the tech guys and arrange to use the exam software • Somewhat different from past years • Short problems and specific questions • Closed book

3. Objectives • Understand the difference between jurisdiction and standing • Understand the theories of standing and how they are used in adlaw cases • Understand ripeness in the agency context, including exhaustion of remedies and primary jurisdiction • The details of access to the courts is for the federal courts course

4. Getting to Court is Not Winning! • Remember from due process • Getting a hearing is not the same as prevailing in the hearing • If you cannot get to court, you cannot win • Why is getting to court good even if you cannot win?

5. Jurisdiction and Standing • Must be present or the claim is void • Can be raised at any time, including by the court on its own (sua sponte)

6. 28 USC § 1251. Original jurisdiction • (a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States. • (b) The Supreme Court shall have original but not exclusive jurisdiction of: • (1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; • (2) All controversies between the United States and a State; • (3) All actions or proceedings by a State against the citizens of another State or against aliens.

7. 28 § 1331. Federal question • The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. • This is the default if the enabling act is silent. • If the agency enabling act contains a provision granting jurisdiction, it preempts § 1331.

8. 28 § 2342. Jurisdiction of court of appeals • http://biotech.law.lsu.edu/cases/adlaw/statutes/28usc2342.htm • What sort of actions are reviewed by circuit courts? • What is the rationale? • Can you fall back to 1331 if the jurisdictional statute is not exclusive? • What about suits to force the agency to issue a rule that would be covered by § 2342?

9. Standing • Constitutionally Required Standing • All cases must meet this standard • While the United States Supreme Court can interpret what it means, the courts cannot abolish it • Prudential standing • Additional statutory or judicial limits over the constitutional requirements

10. Constitutionally Required Standing • Injury in fact • http://biotech.law.lsu.edu/cases/adlaw/Lujan_v_Defenders.htm#18 • injury, causation, and redressability

11. Recreational, Aesthetic, or Environmental Injury • Sierra Club v. Morton, 405 U.S. 727 (1972) • Just loving trees from far away is not enough • If you use the area for recreation, this can be enough • Why did the court find that just loving trees was not enough? • When might this really affect whether a case can be brought?

12. Animal Standing • Do animals have constitutional rights? • Is there a constitutional right to bear dogs? • Are dogs really just people in little fur coats? • What is the test for standing to challenge agency actions that affect animals? • What if you work with lab animals? • Visit the zoo regularly? • Why is animal standing very controversial?

13. Risk as Injury • The courts have accepted a theoretical risk of harm, such as increased risk of cancer from a landfill, as injury • Louisiana Environmental Action Network v. U.S. E.P.A., 172 F.3d 65 (D.C. Cir. 1999) • Risk posed by toxic wastes in landfill • Is this a real risk? • What are the policy implications? • What could the effect be on the NO cleanup?

14. Procedural Injury • What is a procedural injury? • Is the procedural injury enough for standing? • Why not? • What else do you have to show? • What was necessary in Corps permitting example where the corps did not do the required statutory coordination with other agencies?

15. Procedural Injury and Causation • What is the causation problem? • Why was it easy to get standing in the FERC example where the agency allowed previously banned ex parte communications? • Do you have to show that the outcome would have been different? • Why is standing limited by the harmless error doctrine? • Is this a constitutional or practical limit?

16. Informational Injury • What is the injury if the agency fails to provide a document that the law makes available under FOIA? • What if the agency fails to collect required information that would be available to the public • Would a member of the public have standing to contest this? • Why is there standing for a real harm to the general public, as compared to an abstract harm?

17. Third-Party Actions and Causation • Can you get standing because of the effect of an action on a third party? • 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 charity care • Would this really improve the charity care? • What would they need to show?

18. Redressability • You have to be able to show that the remedy you seek from the court would address your problem • Like Simon • If you have stated a concrete action for injury, you probably have also met this standard • The problem is if the agency does not have the power to do what you want

19. Procedural Violations and Redressability • Assume you have stated a real injury in a procedural violation case • Is there still a redressablity 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.

20. Representational Standing • Why is this important for environmental and poverty action groups? • When can associations bring actions on behalf of their members? • At least one member must have standing • It must fit the organization mission • The remedy must not require the participation of individual plaintiffs

21. 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

22. Generalized Standing • If an injury is suffered by a very large group of people, it may be better addressed by legislative action • This is related to the political question doctrine • Why might it better for the claims related to Katrina to be decided by legislation, rather than the courts?

23. Zone of Interests • Are the plaintiff's interests protected by the statute? • Similar to the test in torts for negligence per se

24. Air Courier Conference of America v. American Postal Workers Union, AFL-CIO, 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? • Were there any postal worker unions when the law was passed?

25. 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 • What is their interest? • Does the ESA protect ranching? • Why were they able to use the provision that the agency rely on the best data? • Does their claim improve the application of the ESA?

26. 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

27. Is There an Agency Action to Contest? • Section 702 of the APA allows claims if someone is harmed by an agency action • 551 defines agency action: • '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; • This makes it hard to force an agency to do something that is not specifically required by statute or regulation.