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 • Open book? Notes?

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.

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 • What are the policy implications • What could the effect be on the NO cleanup? • Louisiana Environmental Action Network v. U.S. E.P.A., 172 F.3d 65 (D.C. Cir. 1999) • What if there is a conflict of interest between the members of a group? • Does the group have to look out for everyone?

14. Procedural Injury • What is a procedural injury? • What does a plaintiff have to show to get standing? • Is the procedural injury enough? • What if the agency passes a rule that allows ex parte contacts in a proceeding you participate in? • What is the injury?

15. Procedural Injury and Causation • What is the causation problem? • Do you have to show that the outcome would have been different? • Why is standing limited by the harmless error doctrine?

16. 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?

17. Informational Injury • 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?

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. 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

20. Prudential Standing • This is an umbrella over several different theories • 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

21. 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?

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

23. 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?

24. 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?

25. 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

26. 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.

27. Stopped here

28. Preclusion of Judicial Review • Congress has the power to limit judicial review of agency actions • What if Congress is silent on the availability of judicial review in a particular statute?

29. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) • This was a dispute over the authority of the FDA to require certain labeling changes on prescription drugs, • This is a pure "facial" challenge • The plaintiffs claimed that the FDA exceeded its statutory authority • The Court found that judicial review is favored, and that it would not hold it precluded unless the congressional intent was clear.

30. Pre and Post Enforcement Review • While review is favored, there is no right to review before the agency brings an enforcement actions • Plaintiffs asked for an injunction • They claimed they could not risk enforcement • An injunction prevents the agency from acting • Prevents important health and safety measures • Enmeshes the court in agency policy making

31. Is Abbott "Ripe"? • Ripeness deals with whether the case and controversy is sufficiently far along that the court has enough information to intervene • In a facial challenge, the court does not need to see how the rule is applied • The court must also find that this is a final agency action • In this case, the rule required the product labels to be changed without further agency action

32. What are the Equitable Factors? • Since there is no right to pre-enforcement review, the plaintiff must show the court an equitable basis for granting review, which resembles the factors for granting an injunction • Is there an immediate effect of the agency action on the plaintiff's activities? • What is the risk of waiting for enforcement? • What are the special factors in the drug business?

33. Abbott Rule • Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the [APA] must be permitted, absent a statutory bar or some other unusual circumstance. . .

34. Toilet Goods Assn. v. Gardner, 387 U.S. 158 (1967) • Companion case to Abbott • FDA promulgated a rule allowing them to inspect toilet good manufacturers to assure compliance with FDA regulations • How is a rule allowing inspections different from the rule in Abbott? • How are the equities different?

35. 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

36. Smallpox Emergency Personnel Protection Act of 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)

37. Is there a Final Agency Action? • Same principles as the rules on appealing orders by trial judges • Bennett v. Spear, 520 U.S. 154, 177-178 (1997) • It must be the consummation of the agency process • It must affect legal rights or have legal consequences • How does this fit Abbott and Toilet Goods?

38. Federal Trade Commn. v. Standard Oil Co. of California, 449 U.S. 232 (1980) • FTC finds that Standard Oil is engaging in anticompetitive practices • Sound familiar? • Standard wants to appeal this • Can be used in private actions • Court says this alone does not have legal consequences • Standard must wait until the agency brings an enforcement action

39. National Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971) • Agency opinion letters • This was to an association explaining how the agency would interpret a new law • Detailed explanation • From the secretary's office • In this case, the court found that the opinion was sufficiently specific and from a high enough level to affect the plaintiff's rights

40. Was the Dispute Ripe? • The court found that the dispute in National Automatic Laundry was ripe because the opinion included detailed factual hypotheticals on the application of the doctrine in different situations • This gave the court the necessary factual information to review the application • Without this detail, the court would have required the plaintiff to wait for enforcement so there would be facts to evaluate • (It is not a facial challenge)

41. Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept. v. Dole, 948 F.2d 953 (5th Cir. 1991) • The opinion was to an individual party, based on that party's specific facts - like an IRS letter ruling • The plaintiff was a third party who wanted to challenge the opinion as it would be applied to others • The court found that this was not a final agency action, at least as to other parties

42. Western Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659 (7th Cir. 1998) • This was an opinion letter to two specific parties about whether they were subject to the joint employer doctrine • The letter said they were, and that they were now on notice so they would be subject to the penalties for a willful violation • The court found this was a final agency action • This was influenced by the harsh results

43. Franklin v. Massachusetts, 505 U.S. 788 (1992) • MA wants to contest the method the Department of Commerce used to correct the census numbers • Why does this matter? • The President is charged with determining the final count, and Congress does the reallocation of representatives • The court found that the report from Commerce was only a recommendation to the President

44. What about Compliance Orders? • An order to a specific party to obey the law • Based on the agency's view that the party is not in compliance with the law • Not self-enforcing - the agency must bring a separate enforcement action to force compliance • Is this an appealable final action? • Is it ripe?

45. What if You Benefit from a Policy that is Being Changed? • FDA regulates contamination in foods • These are impossible to completely remove • The agency issues allowable (action) levels • You represent consumers who believe that the new (higher) action levels are dangerous • Is the action ripe as to your claim? • What about a manufacturer? • How are these different?

46. What if the Agency Changes a Permit Process to you Detriment? • The NRC says it is loosening up the permit process for dumping low level waste • Is this ripe? • What has to happen before any waste is dumped under this rule?

47. Exhaustion of Administrative Remedies • This is another timing issue • Does the plaintiff have to go through the agency process before going to court? • Does the plaintiff have to present the same issues to the agency as will be challenged later in court?

48. Is Exhaustion Required by Statute or Regulation? • The key question is whether the enabling act or an agency regulation requires exhaustion • If exhaustion is not required, then the party may go to court directly • However, if there is an agency process available, and you lose in court, you may have waived your agency appeal

49. Exceptions to Exhaustion • Will requiring exhaustion prevent the court from properly reviewing the action? • Has the enforcement been stayed? • Will the plaintiff suffer irreparable harm? • Can the agency process provide the requested relief? • Is the agency so biased or prejudiced that it cannot give a fair review?

50. Portela-Gonzalez v. Secretary of the Navy, 109 F.3d 74 (1st Cir. 1997) • Just knowing that you are going to lose through the agency process is not enough • You have to show that the agency is biased or prejudiced • Just because you do not meet the agency's criteria is not enough