Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Chapter 9 Accountability through Reviewability

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, In General This chapter addresses judicial control of agencies. Without judicial review, constitutional, statutory, and other limitation on agency action would be valueless. There are two types of judicial review: 1. Involves the direct review of agency action. 2. Claim for damages.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, The Test Always balance the government’s interest against the individual’s privacy interest must be made. The more invasive the testing procedure, the greater the government’s interests must be to satisfy the Fourth Amendment.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Sources of Review Authority Statutory: Most review authority is derived from statute. The common law system of review has largely been replaced by legislative declarations concerning the availability of review. Congress enjoys great discretion when legislating in this area; it may establish when the review must be sought and where it must be sought, and may set limits on the judiciary’s authority in reviewing agency action.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Non-statutory If a statute does not provide for a review, non-statutory review may be available. There is a strong preference in the courts for review. There is a strong presumption that Congress does not intend to preclude review when a statute is silent on the subject.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Agency Discretion Decisions that are committed to agency discretion are not subject to judicial review. Many agency decisions involve findings of fact. Others require policy and political decisions. Agencies are better equipped to find the facts in most instances, than are courts. An agency will also be more familiar with the history of a particular case, as well as the facts of the industry involved.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Standing An actual dispute must exist before a federal court can exercise jurisdiction. Theoretical and hypothetical disputes may not be decided by a federal court. The purpose of the case or controversy limitation is to prevent the usurpation (wrongful or illegal encroachment) of executive and legislative power by the judicial branch.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Standing Doctrine Requirement that a person who brings a lawsuit have a personal interest in the case. **Stems from the case or controversy limitation of the Constitution. Standing concerns the issue of who may sue.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, New Standing Test/Three Prongs 1. The plaintiff must suffer an “injury in fact.” 2. The interests asserted by the plaintiff must be “arguably within the zone of interests to be protected or regulated by the statue or constitutional guarantee in question.” (It must be shown that the plaintiff’s injury was caused by the challenged governmental action) 3. It is likely that the injury will be redressed by a favorable decision.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Citizen and Taxpayer Status as a citizen or a taxpayer does not give one sufficient interest to challenge a law or agency action. Disagreement with a law or governmental behavior, without any accompanying harm, is not sufficient to confer standing.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Qui Tam Actions Lawsuit brought by a citizen against one who has defrauded the government. The citizen who brings a qui tam action is entitled to keep a portion of the proceeds of the lawsuit. They are lawsuits brought by citizens on behalf of the government, not against the government. These suits are used to encourage citizens to assist in protection of the pubic treasury.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, False Claims Act Congress recently amended the federal qui tam statute. Permits individuals to bring the same actions as the Attorney General, in the name of the United States. The Attorney General is given the option of intervening and taking over the case or permitting the individual to maintain the prosecution.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, False Claims Act continued If the Attorney General decides to proceed with the case filed by an individual ( also known as an informer), the right to continue as a party. The complaint is kept under seal for a specific period of time while the Attorney General makes the decision whether to become involved. Venue lies in the judicial district in which the offense is alleged to have occurred.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Environmental Cases Class actions are common in environmental litigation. At least one individual must suffer harm to confer standing. Because noneconomic interest are adequate to confer standing, conservation organizations usually have little trouble finding a suitable plaintiff.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Competitor A competitor may have standing to challenge an agency’s action because the competitor has an interest in the case.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Consumer In some cases, consumers may go unprotected because an agency action meets with the approval of both the regulated parties and their competitors. Recently, courts have recognized that if consumers are not permitted standing, their interest may go unprotected. Therefore, consumers may have the right to participate at the agency level as interested parties and may have standing to seek judicial review of agency actions.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Other Ways to Create Standing Congress has some discretion to create rights that will confer standing.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Timing of Review The APA provides for review for FINAL AGENCY ACTION. Final Agency Action: A judicially reviewable agency action.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Primary Jurisdiction Applies to cases in which a private party sues another private party about some matter that is under the control of an agency. **At common law and under the APA, only final agency actions are judicially reviewable. The doctrine of primary jurisdiction, exhaustion of administrative remedies, and ripeness are used to test the timing of an appeal for finality.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Exhaustion of Administrative Remedies Related to the doctrine of primary jurisdiction, the doctrine of exhaustion of administrative remedies is concerned with the timing of a review petition. It provides that all administrative remedies must be pursued and exhausted (completed) before judicial review is available. The doctrine of exhaustion of administrative proceedings is the administrative equivalent of the finality rule in judicial settings.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Ripeness Ripeness is concerned with maturity…Whether a case is sufficiently mature to be heard by a court. A common scenario is when a party believes that a rule is unlawful; however the enacting of that rule has not yet become effective.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Scope and Standards of Review How far will a court delve into the agency’s fact finding, conclusions of law, and analysis? Two Sides 1. Review of agency actions is necessary to prevent abuses. Without judicial review, individuals would be at the mercy of administrative agencies. 2. The need to defer to an agency’s experience and expertise. Agencies are, in theory, expert in the subject areas they regulate.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Standard One: De Novo Standard of review that allows the reviewing court to judge a case anew with no deference accorded to the agency’s factual findings. De Novo review comes in two forms: 1. Pure De Novo: Permits a reviewing court to start from scratch. A new hearing is conducted by the court during which the same or new evidence may be presented. 2. Record de Novo: Permits a court to substitute its opinion for that of the agency, although the court is limited to reviewing the record from the agency. No new hearing is conducted nor evidence received.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Standard Two: Substantial Evidence Standard applied on review; requires a court to affirm an agency decision if a reasonable person could have reached the same conclusion as the agency did.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Standard Three: Arbitrary, Capricious, Abuse of Discretion Deferential standard under which agency actions are presumed valid and are affirmed if supported by any rational basis. Generally, agency action is presumed valid and is affirmed if funded on a rational basis. There must be clear error before a court will invalidate an agency decision under the arbitrary, capricious, abuse of discretion standard.

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Quiz Review

Kaplan University - Adjunct Professor Brian Tippens, J.D. - June 04, Adjourn Have a great week… “See” you on the Discussion Boards