Access to Judicial Review Part II. Statutory Preclusion of Judicial Review Congress has the power to limit judicial review of agency actions What if Congress.

Access to Judicial Review

Part II

Statutory Preclusion of Judicial Review

Congress has the power to limit judicial review of agency actions

What if Congress is silent on the availability of judicial review in a particular statute?

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)

This was a dispute over the authority of the FDA to require certain labeling changes on prescription drugs, 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 and this was not included

The Court found that judicial review is favored, and that it would not hold it precluded unless the congressional intent was clear.

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

Complete Preclusion: 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)

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 are the problems with a facial review? How are these similar to the problems of pre-

enforcement review? Why does the agency prefer post-enforcement review?

What happens with compliance? What if the penalties are so Draconian that no one will

risk enforcement?

Committed To Agency Discretion By Law

5 U.S.C. § 701(a)(2) (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

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

Heckler v. Chaney, 470 U.S. 821 (1985) - Lethal Injection Case

The FDA Act directs the agency to require that drugs be approved for specific uses 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

American Horse Protection Assn., Inc. v. Lyng, 812 F.2d 1 (D.C. Cir. 1987)

Can you get to court to require an agency to make or modify a rule, in the absence of a congressional mandate to make the rule?

The APA requires that an agency respond to a request to make or modify a rule

The court found that this response, or lack of one, was reviewable The court may allow review, but it almost

always defers to the agency

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

Dissents say this makes no sense because it undermines the agency discretion

Lincoln v. Vigil, 508 U.S. 182 (1993)

Indian health service has the discretion to decide how to spend certain funds

Court says this cannot be reviewed, it is a classic policy choice

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

Final Agency Action

Is there a Final Agency Action?

Same principles as the rules on appealing orders by trial judges

Bennett v. Spear, 520 U.S. 154, 177-178 (1997) It must be the consummation of the agency

process It must affect legal rights or have legal

consequences

Federal Trade Commn. v. Standard Oil Co. of California, 449 U.S. 232 (1980)

FTC finds that Standard Oil is engaging in anticompetitive practices Sound familiar?

Standard wants to appeal this Can be used in private actions

Court says this alone does not have legal consequences Standard must wait until the agency brings an

enforcement action

National Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971)

Agency opinion letters This was to an association explaining how the

agency would interpret a new law Detailed explanation From the secretary's office

In this case, the court found that the opinion was sufficiently specific and from a high enough level to affect the plaintiff's rights

Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept. v. Dole, 948 F.2d 953 (5th Cir. 1991)

The opinion was to an individual party, based on that party's specific facts - like an IRS letter ruling

The plaintiff was a third party who wanted to challenge the opinion as it would be applied to others

The court found that this was not a final agency action, at least as to other parties

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

Western Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659 (7th Cir. 1998)

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 This was influenced by the harsh results

Exhaustion of Administrative Remedies

Exhaustion of Administrative Remedies

This is another timing issue 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? How does Wooley affect this in LA?

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.

Is Exhaustion Required by Statute or Regulation?

The key question 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

Exceptions to Exhaustion

Will requiring exhaustion prevent the court from properly reviewing the action? Has the enforcement been stayed? Will 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?

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 a litigant request an administrative appeal before going to court?

Portela-Gonzalez v. Secretary of the Navy, 109 F.3d 74 (1st Cir. 1997)

Plaintiff is fired from a civilian Navy job Plaintiff appeals through 3 levels, but skips last level. Firing is in force during appeal Why does it matter whether the APA applies?

Just knowing that you are going to lose through the agency process is not enough You have to show that the agency is biased or

prejudiced (which is nearly impossible)

Administrative Issue Exhaustion

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

Ripeness

Is Abbott "Ripe"?

Ripeness deals with whether the case and controversy is sufficiently far along that the court has enough information to intervene

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?

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

What are the Equitable Factors?

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? Who will get hit by enforcement?

What are the special factors in the drug business?

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. . .

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?

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?

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

Stopped Here

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

Is this an appealable final action? Is it ripe?

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

You represent consumers who believe that the new (higher) action levels are dangerous Is the action ripe as to your claim? What about a manufacturer?

How are these different?

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?

Ripeness Review

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 exhausted agency remedies Your case is ripe

When Can You Go to Court Without Exhausting Agency Actions?

The agency action is unconstitutional or exceeds the agency's legal authority

Rulemaking - Facial Challenge 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

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 go anyway The agency is biased against your client

Just showing that you are going to lose is not enough

Is there a Final Agency Action?

Most of the hard cases involve agency actions that may put your client at risk, but are not enforcement actions and do not have set appeals standards

In general, you have to show that your client's rights are significantly impacted and that there is a real threat of enforcement.

Opinion letters are a good example Is it directed to your client? Is it specific enough to force changes in your client's

behavior? Is there a real threat of enforcement?

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 change to rule for the

country before hearing an individual dispute Often resolves the dispute, so no judicial remedy is

necessary

End of Chapter 6