§ 10.1 Judicial Remedies Part I

Basic Requirements Court must have jurisdiction Plaintiff must state a recognized cause of action and seek a recognized remedy This is the rub in most of the environmental cases - what is the plaintiff's interest? Must be a real case and controversy Supreme Court does not give advisory opinions States often do

Explicit statutory review provisions in the enabling act Should review be by trial courts or appeals courts? What do what best? Which courts usually get rules and final orders? Why? What usually goes to the trial (district courts?

No explicit statutory review in the enabling act

28 USC 1361 Gives district courts jurisdiction over mandamus to require an officer or employee of the US or an agency to perform a duty owed the plaintiff

28 USC 1343 Jurisdiction to hear cases under 42 USC 1983 and other civil rights statutes (mostly about state officials)

28 USC 1331 Actions arising under federal law, constitution, treaties, etc. Gets most federal agency actions Plaintiff can sue where the defendant resides, the cause of action arose, or the plaintiff resides, unless real property is involved Once 1331 is invoked, the APA 701-706 controls No $10,000 minimum for jurisdiction for agency law or federal questions in general

Sovereign Immunity What is sovereign immunity? Where did it come from? Why have it?

Federal Sovereign Immunity In 1976 the feds abolished federal sovereign immunity for actions other than money damages Money damages come under the Federal Tort Claims Act (FTCA)

Louisiana LA abolished all sovereign immunity in the 1974 constitution What does this mean for state agency actions? Still has discretionary authority defense, but it is hard to figure out what it all means in LA