Access to Judicial Review

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

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

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?

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 )

28 USC § 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.

28 § 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.

28 § Jurisdiction of court of appeals usc2342.htm usc2342.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?

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

Constitutionally Required Standing Injury in fact Defenders.htm#18 Defenders.htm#18 injury, causation, and redressability

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?

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?

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?

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?

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?

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?

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?

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

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.

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

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

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?

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

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?

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?

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

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.