Access to Judicial Review

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 § 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.

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, with in the constitutional limits

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. Can Congress remove jurisdiction?

Where do you file?28 § 2342. Jurisdiction of court of appeals

http://biotech.law.lsu.edu/cases/adlaw/statutes/28usc2342.htm

What sort of actions are usually reviewed by circuit courts? What is the rationale for having agency cases

heard in the courts of appeals?

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 Can you fall back to 1331 for an action covered

by 655? Could you use 1331 to get into district court about

a suit over an OSHA action not covered by 655? What are the conflicting policies?

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

Constitutionally Required Standing

Injury in fact http://biotech.law.lsu.edu/cases/adlaw/Lujan_v_

Defenders.htm#18 Injury Causation 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?

Example: Dam 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?

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?

Example - Requirement that the Corps Coordinate with other Agencies

What was necessary for standing in the Corps permitting example where the corps did not do the required statutory coordination with other agencies?

What if it were a remote, unpopulated area? Might this leave no with standing to object in

court?

Example - FERC

FERC allows previously banned ex parte communications

What is the injury? What is your argument for standing? Who can claim standing?

Example - Denial of a Required Public Hearing

The Corps skips a required public hearing when issuing a permit

How is this different from skipping a public hearing to take comments on a rule?

How would Justice Scalia read the standing requirement?

How do some commentators argue that the Defenders of Wildlife have suffered a particularized injury, and thus have standing?

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?

Example - FEC Classification Decision

FEC does not classify an organization as one that must make public reports of its finances

Does a plaintiff who wants info on the group have standing to contest the classification?

What is FEC's argument against standing? How did the Court use the purpose for collecting the

information to support the plaintiff's standing claim? What is your argument if the required information is not

reported to the public?

Procedural Violations and Causation:Agency Fails to get an EIS for a Dam

What is the causation problem? What is the harmless error doctrine from civil procedure? Do you have to show that that they gotten the EIS, that

the dam would not have been built? What is the correct showing? What would the agency have to argue to rebut the

standing claim? Why should this be a problem for the agency?

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 denying the exemption increase charity care? What would they need to show?

What if this was an order from HHS to comply EMTALA, which requires emergency care be provided without regard to the patient's ability to pay?

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."

Do you still have to show a theoretical chance of a change in agency action if the procedure is fixed?

Representational Standing

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 Why is this important for environmental and

poverty action groups?

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.

Problems with 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?

This is a court created doctrine to ensure that claims made under a statute actually advance the purpose of the statute, including the intended beneficiaries Similar to the test in torts for negligence per se

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? 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? How does their case depend on the welfare of the

suckers?

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

Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918 (D.C. Cir. 1989)

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?

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.

What is plaintiff's interest? How is plaintiff's interest different from plaintiff in trade

group case? What is the plaintiff's argument for why the

environment is harmed by the substitution? Why does the specificity of the standard help

plaintiff's case, compared to the trade group case?

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 exception and the underlying law?

How might the analysis shift if Amazon is the plaintiff and does not pay taxes itself?

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.

For example, general claims that the BLM is not protecting the environment do not work