1. Access to Judicial Review

2. 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

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

4. Jurisdiction Must be present or the claim is void
Can be raised at any time, including by the court on its own (sua sponte)
Why isn't a jurisdictional claim waived if opposing counsel does not raise it?

5. 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.

6. The Role of Congress
Except for the original jurisdiction of the United States Supreme Court that is in the constitution, and the constitutional requirement for a case and controversy, everything else is statutory
Congress creates, and can limit, jurisdiction and standing, within the constitutional limits.

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.
Why will this always give you jurisdiction in a federal agency action?
If the agency enabling act contains a provision controlling jurisdiction, it preempts § 1331.

8. Agency Actions in the Court of Appeals
Why would Congress move most agency appeals to the circuit courts, as opposed to the district courts as specified in § 1331?
What sort of actions are usually reviewed by circuit courts?
What is the rationale for having agency cases heard in the courts of appeals?
Location limits – Most challenges to rules under the Clean Air Act have to be in the DC Circuit.

9. OSHA Example
Enabling act says that actions may be brought under 29 U.S.C. § 655(f) in circuit courts
The statute is silent as to whether this is the exclusive source of jurisdiction
Could you use 1331 to get into district court about a suit over an OSHA action covered by 655?
specific statutes govern over general statutes, and to allow a plaintiff to choose a suit in district court over the specific statute's provision of review in a court of appeals would thwart the purpose of the specific statute
What if it were an OSHA action not covered by 655, such as the failure to make a rule?
What is the legislative intent?

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

11. What is the Test for Constitutionally Required Standing?
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Injury in fact
Causation
Redressability

12. Broad Band Internet Access
FCC makes a rule requiring cable companies to allow all ISPs access to communications links to customers under the same terms.
A part of net neutrality.
Would a cable company have standing?
Injury?
Causation?
Redressability?

13. Congressional Standing
Congressman wants to challenge the constitutionality of a statute
Is there a particularized (personal) injury?
What are the separation of powers issues?
What is the proper remedy for a congressman?
Why would the court be unwilling to intervene?
(Raines v. Byrd, 521 U.S. 811 (1997))
What about a congressman suing the president for making war without a congressional declaration?
What about Congress defending a law? (Remember Chadha)

14. 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?

15. Example: Damn that Mouse!
Corps wants to build a dam that will destroy a scenic river and the habitat of an endangered mouse
Sally has hiked there and will in the future
John has spent his life defending endangered species, but has no future plans to visit this area.
Who has standing and why?
What if John were a scientist studying the mouse in his lab?
What is the mouse is only found in this habitat?

16. 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?
Does it matter when?
Visit the zoo regularly?
Why is animal standing very controversial?

17. Risk as Injury
Historically, 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 happens to the neighborhood if plaintiff's win?
What could the effect be on the NO cleanup after a storm like Katrina?

18. Public Citizen, Inc. v. National Highway Traffic Safety Admin. , 489 F
Public Citizen, Inc. v. National Highway Traffic Safety Admin., 489 F.3d 1279 (D.C. Cir. 2007)
at least both (i) a substantially increased risk of harm and (ii) a substantial probability of harm with that increase taken into account.…If the agency action causes an individual or individual members of an organization to face an increase in the risk of harm that is ‘‘substantial,’’ and the ultimate risk of harm also is ‘‘substantial,’’ then the individual or organization has demonstrated an injury in fact.…In applying the ‘‘substantial’’ standard, we are mindful, of course, that the constitutional requirement of imminence as articulated by the Supreme Court…necessarily compels a very strict understanding of what increases in risk and overall risk levels can count as ‘‘substantial.’’
The court wanted specific numbers, which are expensive to get.

19. Summers v. Earth Island Institute, 555 U.S. 488 (2009)
Forest service makes a rule that some timber sales can be made without the usual statutory notice and comment.
What is plaintiff’s problem in getting standing to contest the rule? (Which tree has to be hugged?
Plaintiff argues that at least one of its many members will be affected by any possible sale
What does the Court say about this probabilistic injury?
When will the injury be real?

20. Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743 (2010)
Organic farmers contest a Dept. of Agriculture decision to deregulate the planting of GM alfalfa.
How could this injury them?
Could they show a certainty that one would be injured?
The United States Supreme Court accepted this probabilistic injury.
How can you distinguish the cases?
Do the plaintiffs have to do anything in Summers while waiting for the timber to be cut?
What do the Geertson plaintiffs have to do to detect possible damage?

21. Rethinking Risk as Injury
Must there be a substantial risk of injury, rather than just a theoretical risk of injury?
Why is this easy to satisfy if the class is big enough and you have some evidence of risk?
NRDC v. EPA, 464 F.3d 1 (D.C. Cir. 2006)
2 of 500,000 of their members might get cancer

22. Access to Judicial Review
Part II

23. Fear as Injury Why is this key to many toxic tort cases?
How can this be manipulated by attorneys?
How was this used in the BP spill?
Why does this complicate allowing fear to trigger standing?
Is there a real violation, such as violating a permit to dump toxic materials?
This creates a plausible fear if you swim in the river.
Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167 (2000)

24. Procedural Injury
In Lujan, the procedural violation was the failure of the agency to do an inter-agency consultation.
Was the public allowed to participate in this?
Why does this keep DOW from being able to state an injury?
Procedural injuries still require the nexus to the activity.
How can a procedural violation cause substantive injury?
What was the injury in the procedural due process claims we talked about in Chapter 4?

25. Example – The Dredge Permit
The Corps does not do the required public hearing before issuing a dredge and fill permit.
You are counsel for DOW and you claim your injury is the failure to be able to comment on the permit.
Is this enough to get standing?
Does the denial of the right to comment constitute injury?
What about a landowner whose land would be affected by the change in runoff?

26. Informational Injury
FOIA provides that anyone may request and receive non-privileges government documents.
What is the injury if the agency refuses to provide a document that is available under FOIA?
Why does this depend on the statutory policy of the FOIA?

27. Example - FEC Classification Decision
FEC does not classify an organization as one that must make public reports of its finances, which are then published by the FEC.
Does a plaintiff who wants info on the group have standing to contest the classification?
How did the Court use the purpose for collecting the information to support the plaintiff's standing claim?
"Here, Congress, by passing the Act with the disclosure requirement, had deemed the information to be important to inform voters.“
Federal Election Commn. v. Akins, 524 U.S. 11 (1998)

28. Lujan Revisited as an Informational Injury
The Endangered Species Act requires an agency to get a Biological Opinion before issuing a permit.
Lujan said that failing to get the opinion was not a procedural injury.
How could you argue, using the FEC example, that failure to obtain the Biological Opinion, which would be a public document, is an informational injury?
The ESA allows citizens to sue if it is violated.
Assume your group publishes the opinions.

29. Injury to All
The usual remedy for “injury to all” cases is legislative or executive, not judicial.
Taxpayers, for example, have very limited standing as such.
In the FEC case, everyone was denied the information about the contributions. There was standing because Congress said in the enabling legislations that ‘‘any party aggrieved’’ by a Commission denial of its complaint could obtain judicial review of the denial.
In the absence of specific statutory authorization, most injury to all cases will not get standing.

30. Causation for Standing

31. Procedural Violations and Causation: Agency Fails to do an EIS for a Dam
How does failing to do the EIS make the final agency action – building the dam – illegal?
Do you have to show that that they done the EIS, that the permit for the dam would not have been issued?
Is this partially driven by the nature of the EIS, i.e., that it is only informational and does not directly drive decisionmaking?
Why does this make it difficult to show that an EIS would affect the outcome of agency decisiomaking?

32. Confusion with Harmless Error
5 U.S.C. § 706 (Civil procedure)
“In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.”
Some courts have required plaintiff to show it is substantially probable that the procedural breach will cause the injury
Is this a proper standard for a procedural violation, such as failing to do an EIS?
Must the plaintiff show that it is more than theoretically possible for the violation to affect the outcome?
How could the agency show that the EIS could not have altered the decisionmaking?

33. Does the Remedy Help Your Client?
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 enough charity care
Why is the plaintiff asking for this remedy?
Would denying the exemption increase charity care?
What if plaintiffs could show that the exemption is so valuable that hospitals always cave in before losing it?

34. Go to Mass v. EPA - Standing

35. Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007)
Background and Standing

36. Background

37. What does the Clean Air Act §7521(a)(1) require the EPA to issue regulations on?
[35] "The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare ...
What other agency regulates autos?

38. What is the definition of pollutant in the act?
[36] The Act defines "air pollutant" to include "any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive ... substance or matter which is emitted into or otherwise enters the ambient air." §7602(g).
"Welfare" is also defined broadly: among other things, it includes "effects on ... weather ... and climate." §7602(h).
Can you be a polluter under the law?

39. What did the petition of October 20, 1999 ask the EPA to do?
On October 20, 1999, a group of 19 private organizations filed a rulemaking petition asking EPA to regulate "greenhouse gas emissions from new motor vehicles under §202 of the Clean Air Act."
As to EPA's statutory authority, the petition observed that the agency itself had already confirmed that it had the power to regulate carbon dioxide.
What does the EPA have to do with a request?

40. What had the EPA said about its authority over CO2 in the past?
In 1998, Jonathan Z. Cannon, then EPA's General Counsel, prepared a legal opinion concluding that "CO2 emissions are within the scope of EPA's authority to regulate," even as he recognized that EPA had so far declined to exercise that authority.
Are they regulated in other areas?
Where would CO2 pose an acute threat?
Whose EPA was this?

41. Did EPA seek public comment on the petition?
[45] Fifteen months after the petition's submission, EPA requested public comment on "all the issues raised in [the] petition," adding a "particular" request for comments on "any scientific, technical, legal, economic or other aspect of these issues that may be relevant to EPA's consideration of this petition." 66 Fed. Reg. 7486, 7487 (2001).

42. EPA Response to the Petition for Rulemaking
On September 8, 2003, EPA entered an order denying the rulemaking petition. 68 Fed. Reg The agency gave two reasons for its decision: (1) that contrary to the opinions of its former general counsels, the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change, see id., at  ; and (2) that even if the agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time...
Whose EPA is this? Remember the value of delay.

43. Standing in This Case

44. §7607(b)(1) – Specifies Venue for CAA Rules Challenges
(b) Judicial review (1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 7412 of this title, any standard of performance or requirement under section 7411 of this title, any standard under section 7521 of this title (other than a standard required to be prescribed under section 7521 (b)(1) of this title), any determination under section 7521 (b)(5) [1] of this title, any control or prohibition under section 7545 of this title, any standard under section 7571 of this title, any rule issued under section 7413, 7419, or under section 7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia.

45. Do the same standing requirements apply to states as to individuals?
"This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air."
Justice Holmes explained in Georgia v. Tennessee Copper Co., 206 U. S. 230, 237 (1907)
Did anyone notice this case in lower court litigation?
Why not?

46. Dissent - The State as Parens Patria
As a general rule, we have held that while a State might assert a quasi-sovereign right as parens patriae "for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them." Massachusetts v. Mellon, 262 U. S. 447, (1923)

47. Injury to one or injury to all?
"While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that the legal questions presented ... will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." 504 U. S., at 581 (Lujan)

48. Is this a Procedural Rights Case?
However, a litigant to whom Congress has "accorded a procedural right to protect his concrete interests," -- here, the right to challenge agency action unlawfully withheld, §7607(b)(1) -- "can assert that right without meeting all the normal standards for redressability and immediacy...“
Remember how the plaintiffs got in court?

49. Nature of the Injury
Is global warming and ocean rise an injury to everyone?
How do the projected effects in southern Louisiana different from those in west Texas?
How do we use this to craft an argument that Massachusetts suffers an injury that is sufficiently individualized to justify standing?

50. What is the particularized injury that Mass claims to its own lands?
Because the Commonwealth "owns a substantial portion of the state's coastal property," it has alleged a particularized injury in its capacity as a landowner. The severity of that injury will only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be "either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events."
Sound familiar?

51. Redressability What is the redressability problem in this case?
Assume that the EPA could reduce automobile exhaust emission to zero:
What would be the impact on global warming?
Why?
Why would accepting the EPA's argument in this case hurt agencies in other cases when they want to regulate something?
Are plaintiffs even asking for a rule in this case?

52. Does Plaintiff have to show that the rule will solve global warming?
Sugar Cane Growers:
"A [litigant] who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result"
Why is this going to be critical for a global warming case?

53. The Dissent
What is the heart of the dissent's belief that this is a political question?
Is there merit to this argument?
Will US auto emissions standards affect global warming in a measurable, as opposed to theoretical way?
Does this meet the traditional tests for redressability?
This was a 5-4 decision. A later case calls into question whether the CAA can effectively regulate GHGs - Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct (2014).

54. What could EPA have done differently?
What does the EPA need to do to support its refusal to make a rule so that the courts cannot find the refusal arbitrary and capricious?
Given the broad language of the Clean Air Act, what could EPA have done to avoid this case?

55. Access to Judicial Review
Part III

56. Representational Standing
When can associations bring actions on behalf of their members?
At least one member must have standing
It must fit the organizational mission
The remedy must not require the participation of individual plaintiffs, beyond the standing analysis
Injunctive relief or declaratory judgments
Why is representational standing important for environmental and poverty action groups
Why might businesses with money still need it?

57. Exceptions to Judicial Review

58. Statutory Preclusion of Judicial Review
Congress has the power to limit judicial review of agency actions
Subject to constitutional limits
How specifically must congress speak?
What if Congress is silent on the availability of judicial review in a particular statute?
Does "Committed to agency discretion" mean that the action is not subject to judicial review?

59. Complete Preclusion of Judicial Review: Smallpox Emergency Personnel Protection Act 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)

60. Is there Judicial Review at All?
Abbott Labs is an early foundational case in administrative law. We read Abbott Labs for two issues. The first is whether there is any judicial review at all, in the absence of specific congressional authorization.
The second issue is the timing for review, i.e., was the issue ripe?

61. When is Review Appropriate? (Prelude to the later ripeness discussion)
Should the plaintiff be able to get review of an agency regulation before the agency takes enforcement action?
What is a facial review of a statute?
What is the traditional constitutional law standard for a facial review?

62. "As Applied" (Post-Enforcement) Review
Why does the agency prefer post-enforcement review?
What do you have to balance in deciding whether to violate the statute and then challenge it?
What additional information does the court get when it requires the plaintiff to wait until there is enforcement?
What if the penalties are so Draconian that no one will risk enforcement?

63. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) - Is There Review?
This was a dispute over the authority of the FDA to require the generic name on prescription drug labels
The plaintiffs claimed that the FDA exceeded its statutory authority
FDA said that this was not reviewable because the enabling act provided for specific review of other actions and this was not included in the list
The Court found that judicial review is favored, and that it would not hold it precluded unless the congressional intent was clear.

64. 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
This might also be seen as a zone of interest question.

65. 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
Does this look like Standard Oil?
Is this an appealable final action? Is it ripe?

66. Sackett v. U.S. EPA, 132 S. Ct (2012)
Are EPA Clean Water Act compliance orders final, appealable orders?
The EPA starts the penalty clock from the issuance of the compliance order.
There is an ever increasing penalty for delay in complying.
How would this change your analysis?

67. Does Committed To Agency Discretion By Law Mean No Judicial Review?
5 U.S.C. § 701(a)(2) (§ 701, et seq is judicial review)
(a) This chapter applies, according to the provisions thereof, except to the extent that -
(2) agency action is committed to agency discretion by law.
This is related to the political question doctrine
The courts recognize that agencies are charged with making policy under the direction of the legislature and the executive branches
The proper review of a policy choice is through the ballot box

68. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)
Congress said no federal money to build roads in parks if there was a "feasible and prudent" alternative
The Secretary authorizes a road in a park and tells plaintiffs that it is within his discretion and cannot be reviewed by the courts
Does the Court have a standard to review this decision, or is it a pure policy choice?
The court found that "feasible and prudent" provided adequate law to guide judicial review
Committed to agency discretion was held to be very narrow, unless specified by statute

69. Heckler v. Chaney, 470 U.S. 821 (1985) - Lethal Injection Case
The FDA Act directs the agency to require that drugs be approved for a specific use before they can be sold in interstate commerce
The agency does not police the use of drugs for unapproved purposes, once they are approved for at least one use
The court rejected a challenge to this, say this was classic prosecutorial discretion, which an agency did not have to justify.
Later cases question whether the FDA has the authority to regulate post-sale use.

70. Decisions on Rulemaking Petitions
The court distinguished a decision to refuse to amend a rule as different from prosecutorial discretion to do enforcement, allowing judicial review of these decisions.
This review is implicit in the statutory provision for rulemaking petitions.
American Horse Protection Assn., Inc. v. Lyng, 812 F.2d 1 (D.C. Cir. 1987)

71. Webster v. Doe, 486 U.S. 592 (1988)
National Security Act allows CIA employees to be fired without due process or judicial review
Court says this is within congressional power, especially for national security
Court says that the plaintiff's constitutional law claim can be reviewed because no agency is above the constitution.
Like stigma plus, with the stigma being a constitutional violation such as firing based on race.
Dissent says this makes no sense because it undermines the agency discretion.
Lower courts limit discovery to protect the agency.

72. Lincoln v. Vigil, 508 U.S. 182 (1993)
Indian health service has the discretion to decide how to spend certain funds
This is a classic earmark - funds with a non-statutory direction on how to spend them.
Court says this cannot be reviewed, it is a policy choice – political question.
However, whether the policy has to be announced through notice and comment versus a simple policy statement, is reviewable
The procedure may be reviewable, even if the policy is not.

73. Causes of Action and the Zone of Interests

74. (Juris)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
Since this a court created doctrine and not a constitutional doctrine, the legislature can override it.

75. Zone of Interests
5 USC 702
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. 
Courts have read this to narrow claims to what the court determines is the purpose of the statute.
Similar to the test in torts for negligence per se

76. Discuss Lexmark

77. Examples of Zone of Interest Analysis

78. Air Courier Conference of America v
Air Courier Conference of America v. American Postal Workers Union, 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?
Why did this break down?
Were there any postal worker unions when the law was passed?
Why does this matter?

79. 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.
Why do they want the water released?
What is the Endangered Species Act (ESA) problem?
What is their constitutional standing injury?
Why were they able to use the provision that the agency rely on the best data?
Does their case improve the welfare of the suckers?
How does their claim improve the application of the ESA?

80. Association of Data Processing Service Organizations, Inc. v
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.
Not overruled, but maybe out of date.

81. Hazardous Waste Treatment Council v. Thomas, 885 F. 2d 918 (D. C. Cir
Trade group represents providers of advanced waste treatment services
EPA adopts rule requiring less complete treatment of waste
Why does plaintiff want to contest the rule?
What is the purpose of the rule (remember CBA)?
Did the court find plaintiff in the zone of interest?

82. Honeywell International, Inc. v. EPA, 374 F.3d 1363 (D.C. Cir. 2004)
Plaintiff contests the EPA allowing a product made by a competitor to be substituted for a CFC.
How is plaintiff's interest different from the plaintiff in Hazardous Waste?
Did the statute allow a product to be approved if it affected health or the environment?
Why does the specificity of the standard help plaintiff's case?
Was Hazardous Waste different because the rule which was being limited could be implemented in many different ways, some of which might have benefited plaintiffs but not the environment?
Or is this just confusion in the courts?

83. Example: Internet Book Stores
IRS allows non-profit college book stores to operate on the Internet
Other Internet books stores object
What is the analysis?
What is the purpose of the non-profit exception and the underlying law?
Why might this further the purpose of the law?

84. Zone of Interests Review
Is the plaintiff's interest directly addressed by the statute or reg?
Is the plaintiff's interest congruent with the statute, so that enforcing it furthers the purpose of the statute or reg?
Courts have bought this, but it is shakey
When can the party contest whether the statute or reg is correctly applied - ranchers/Honeywell?
Still must show direct impact

85. Access to Judicial Review
Part IV

86. Problems of Timing
Has the agency done something that has affected your rights in a way that allows you to challenge the action in court?
Doctrine of Finality
Doctrine of Exhaustion
Doctrine of Ripeness
This is related to our question in distinguishing guidance from rules requiring notice and comment:
Have your client’s rights been changed?

87. The First Question: Has there been an the Agency Action?
The APA defines ‘‘agency action’’ as ‘‘includ[ing] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.’’ 5 U.S.C. §551(13).
‘‘failure to act’’ means the failure to take one of the discrete actions listed in the definition of ‘‘agency action.’’
Absent specific statutory direction, can plaintiffs force the BLM to protect potential wilderness areas from human use?
Is failure to act an agency action?
Is this like a mandamus question?

88. 5 U.S.C. § 704. Actions reviewable
Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.
A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.
Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsiderations,
or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.

89. Is There a Final Agency Action?
Bennett v. Spear, 520 U.S. 154, (1997)
It must be the consummation of the agency process
It must affect legal rights or have legal consequences

90. Federal Trade Commn. v. Standard Oil Co. of California, 449 U. S
FTC brings a complaint against Standard Oil for engaging in anticompetitive practices
Standard wants to appeal this
Can be used in private antitrust actions
Court says this alone does not have legal consequences
Standard must wait until the agency brings an enforcement action

91. Opinion Letters Are they final actions? Who are they final for?
Are the prospective or do they require a change in conduct?
Do they trigger penalties?
Should they be notice and comment rules?

92. National Automatic Laundry and Cleaning Council v. Shultz, 443 F
National Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971)
An association asked how the agency would interpret a new law
The secretary provided:
Detailed explanation
General direction not based on individualized facts
In this case, the court found that the opinion was sufficiently specific and from a high enough level to affect the plaintiff's rights.
This was What would you argue today?

93. Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept. v
Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept. v. Dole, 948 F.2d 953 (5th Cir. 1991)
Is an opinion final action as to third parties?
The opinion was to an individual party, based on that party's specific facts.
These are like IRS letter rulings and OIG opinions
The plaintiff was a third party who wanted to challenge the opinion.
The court found that this was not a final agency action, at least as to other parties.
If it had been, what would your challenge have been?

94. Opinion Letters on Current Conduct
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 as to the parties because it required an immediate change in behavior.
Western Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659 (7th Cir. 1998)

95. Army Corps of Engineers v. Hawkes Co., 578 U.S. ___ (2016)
Are 404 jurisdictional determinations final agency action?
JD means that the Corps has found your land is wet, with all the attendant legal restrictions.
Courts were split over whether this was final agency action.
The United States Supreme Court found that these affected the land owner’s rights, and thus were final.

96. 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
Still an issue: How do you count?

97. Finality Wrap-up Is the agency action directed to your client?
If not, what is your argument as to why it affects your client’s interests?
Is it complete, or an intermediate action?
Does it have legal consequences, i.e., will it require your client to change its behavior?
Does it require an immediate change?
If it is general, should it be a rule?

98. Exhaustion of Administrative Remedies
When is the agency done with you?

99. Exhaustion of Administrative Remedies
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?
This is a source of significant malpractice
Some of the Katrina levee cases were dismissed because the plaintiffs did not exhaust their remedies before filing suit.

100. APA - 5 U.S.C. § 704
. . . Except as otherwise expressly required by statute, agency action otherwise final is final for purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.
Can the agency enforce an order and still require exhaustion of agency appeals process?
Why would this be logically inconsistent?
(There is a common law exhaustion discussed later for non-APA cases.)

101. Is Exhaustion Required by Statute or Regulation?
The key question under the APA 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
Does the rule have to say exhaustion, or is it implied by having the process?

102. Example: HUD Regulations
HUD regulations allow, but do not require that an administrative appeal be filed.
The granting of the appeal is discretionary with the secretary
The ruling of the ALJ becomes final in 30 days and is not stayed by a request for a hearing
Must you request an administrative appeal before going to court?
Remember 704

103. Common Law Exhaustion: Portela-Gonzalez, 109 F.3d 74 (1st Cir. 1997)
Plaintiff is fired from a civilian Navy job
The APA does not apply by statute
Plaintiff appeals through 3 levels, but skips last level.
Firing is in force during appeal
What is the common law of exhaustion?
Is the APA narrower?
Do you have a final ruling if there is agency process left?
Just knowing that you are going to lose through the agency process is not enough.

104. Exceptions to Common Law Exhaustion
Will requiring exhaustion prevent the court from properly reviewing the action?
Is the agency enforcing its ruling and will this cause 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?
McCarthy v. Madigan, 503 U.S. 140 (1992)

105. What if You Screw Up Your Administrative Appeal?
Assume that a person tried to exhaust the administrative appeals, but makes a procedural error such as missing a deadline, and the appeal is dismissed by the agency
Since there is no further process available at the agency, has he exhausted the agency remedies?
Has he gotten a final judgment from the agency on the merits?
Can you go to court without a final ruling from the agency?
Can you get to the Supreme Court in an Article III case if you screw up the appeal to the Circuit Court?

106. Administrative Issue Exhaustion
Must each issue that will be appealed to the courts be raised at the agency level?
What about in a regular trial: If you do not present an issue to the trial court - other than a jurisdictional issue - can you raise it at the first time on appeal?
What if you raise some issues with the agency, but not others - can you then appeal the ones you raised?

107. Sims v. Apfel, 530 U.S. 103 (2000) Social Security disability benefits
The court held that the general rule is that plaintiffs who are subject to exhaustion of remedies must also present the issues they want to appeal to the agency
In the specific case, the court found that the special nature of SS mitigated against preclusion
Informal, and applicants seldom have counsel

108. Issue Exhaustion in Rulemaking
When do parties have a chance to object to provisions in a rulemaking?
Should they be required to make their objections during the comment period if they plan to challenge the rule later in court?
Is this analogous to an administrative appeal of an order?
What if the party did not raise the issue in a comment, but someone else did?

109. Warning – Ripeness and Finality Can Blend Together
Is the Case Ripe?
Warning – Ripeness and Finality Can Blend Together

110. Ripeness
"The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration."
If the case is not ripe, you do not have a case and controversy
Ripeness is not codified in the APA, so it remains a jurisprudential doctrine
Ripeness is jurisdictional, so it can be raised at any time

111. Abbott Round II

112. Was Abbott "Ripe"?
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
What is the impact of this regulation?
What is the risk of enforcement?

113. 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

114. What are the Equitable Factors? (Think injunction standards)
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?
Does the court have enough information to determine the issue?
What are the special factors in the drug business?

115. 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. . .

116. 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?

117. Example: EPA Smoke Spotters
The “credible evidence” rule allowed visual observation of smoke from a smokestack to be used as evidence that a person was violating its Clean Air Act requirements
Plaintiffs contest the action, saying it was beyond agency authority
Is this more like Toilet Goods or Abbott Labs?
Do plaintiffs have to change their behavior?

118. Was the Dispute Ripe in National Automatic Laundry?
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
Without this detail, would it be a rule?

119. 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
This is a safe harbor, it is not necessarily the safety limit that would trigger sanctions if exceeded

120. Whose Claim is Ripe?
You represent consumers who believe that the new (higher) action levels are dangerous
Is the action ripe as to your claim?
Can it get riper?
What about manufacturers who think the level is too
low?
How are they different from consumers?
What new info might the court get by waiting until enforcement?

121. What if the Agency Changes a Permit Process to Your 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?
What if the forest service loosens up the permit process for clear cutting, but there must be a timber sale with public input before the timber can be cut?

122. Ripeness Recap
Ripeness is the other side of exhaustion of agency remedies
Enforcement actions, permits, and other affirmative agency actions against your client
If you have done everything the agency requires, then you have exhausted agency remedies
Your case is ripe

123. APA - When Can You Go to Court Without Exhausting Agency Actions?

124. The agency action is unconstitutional or exceeds the agency's legal authority
Rulemaking - Facial Challenge
How does this differ from a challenge that the record is not adequate?
You have to convince the court that the rule does not have a legal application
You have to convince the court that your client will suffer significant harm if it must wait for enforcement
If you fail, then you have to wait until the agency acts against your client
Agency enforcement actions let you go for an injunction or other attack on the agency authority

125. Impossibility of Agency Remedy
The agency does not offer the remedy you seek
You want money damages and the agency remedies only offer that the agency will stop enforcement actions
Congress can require you to still exhaust your agency remedy
The agency is biased against your client
Just showing that you are going to lose is not enough
Remember from previous chapters how hard this is to prove.

126. Primary Jurisdiction
This is related to "Committed To Agency Discretion"
In these disputes there is a issue which meets the standard for judicial review
The primary jurisdiction question is whether the courts should let the agency resolve the problem first
This is important when national uniformity is important, such as automobile emissions standards
The court gives the agency the chance to rule for the country before hearing an individual dispute
Often resolves the dispute, so no judicial remedy is necessary

127. End of Chapter 6