Judicial ReviewJudicial Review

Getting Into CourtGetting Into Court

Standards of ReviewStandards of Review

RemediesRemedies

Getting Into CourtGetting Into Court

JurisdictionJurisdiction StandingStanding Exhaustion of Administrative Exhaustion of Administrative

RemediesRemedies RipenessRipeness MootnessMootness

JurisdictionJurisdiction

APA gives general right of reviewAPA gives general right of review

Statutory Review: Used when agency’s Statutory Review: Used when agency’s enabling act provides a special enabling act provides a special statutory review proceedingstatutory review proceeding

Nonstatutory Review: Derived from Nonstatutory Review: Derived from general grants of original jurisdiction general grants of original jurisdiction in federal courtsin federal courts

StandingStanding

(1) Has the complainant alleged “injury (1) Has the complainant alleged “injury in fact”? in fact”?

(2) Is the interest sought to be (2) Is the interest sought to be protected by the complainant “arguably protected by the complainant “arguably within the zone of interests to be within the zone of interests to be protected or regulated by the statute or protected or regulated by the statute or constitutional guarantee in question?” constitutional guarantee in question?”

U.S. Constitution Article III, Section 2

Article III, Section 2

“Cases and Controversies”

Injury in FactInjury in Fact

(1)(1) Invasion of a legally protected interest Invasion of a legally protected interest which is which is

(a)(a) concrete and particularized concrete and particularized

(b) actual and imminent, not conjectural or (b) actual and imminent, not conjectural or hypothetical hypothetical

(2) There must be a “causal (2) There must be a “causal connection” between the injury connection” between the injury and the complaint; the injury must and the complaint; the injury must be fairly traceable to the be fairly traceable to the challenged action of the challenged action of the defendant, and not the result of defendant, and not the result of the independent action of some the independent action of some

third party not before the courtthird party not before the court

(3) It must be likely, as opposed to (3) It must be likely, as opposed to merely speculative, that the injury merely speculative, that the injury will be redressed by a favorable will be redressed by a favorable decisiondecision

Zone of Interests TestZone of Interests Test

Prevents standing only when “the Prevents standing only when “the plaintiff’s interests are so marginally plaintiff’s interests are so marginally related to or inconsistent with the related to or inconsistent with the purposes implicit in the statute that it purposes implicit in the statute that it cannot reasonably be assumed that cannot reasonably be assumed that Congress intended to permit the suit.” Congress intended to permit the suit.”

“ “Rule of self-restraint”Rule of self-restraint”

Landmark Standing Landmark Standing CasesCases

Sierra Club v. MortonSierra Club v. Morton, 405 U.S. 727 (1972), 405 U.S. 727 (1972)

U.S. v. SCRAPU.S. v. SCRAP, 412 U.S. 669 (1973), 412 U.S. 669 (1973)

Duke Power v. Carolina Environmental Study Group, Inc.Duke Power v. Carolina Environmental Study Group, Inc., 438 , 438 U.S. 59 (1978) U.S. 59 (1978)

Lujan v. Nat’l Wildlife FederationLujan v. Nat’l Wildlife Federation, 497 U.S. 871 (1990), 497 U.S. 871 (1990)

Lujan v. Defenders of WildlifeLujan v. Defenders of Wildlife, 504 U.S. 555 (1992) , 504 U.S. 555 (1992)

Exhaustion of Exhaustion of Administrative RemediesAdministrative Remedies

Court will usually dismiss case if review Court will usually dismiss case if review is sought before plaintiffs have pursued is sought before plaintiffs have pursued all options for addressing the problem all options for addressing the problem at the agency level at the agency level

Exceptions:Exceptions: -- Agency is clearly exceeding its -- Agency is clearly exceeding its jurisdictionjurisdiction-- Administrative remedies are -- Administrative remedies are inadequateinadequate-- Statutory exemption from -- Statutory exemption from requirementrequirement

Ripeness and Mootness Ripeness and Mootness

Courts cannot decide abstract or Courts cannot decide abstract or theoretical claims, or render advisory theoretical claims, or render advisory opinions. opinions.

Test: whether the issue presented to Test: whether the issue presented to the court is “fit for review” (the so-the court is “fit for review” (the so-called legal fitness test) and whether called legal fitness test) and whether withholding review would impose a withholding review would impose a substantial hardship on the party substantial hardship on the party seeking review. seeking review.

Standards of Standards of Judicial ReviewJudicial Review

Steps in Agency Process:Steps in Agency Process:Law, Fact, and DiscretionLaw, Fact, and Discretion

Agency Agency interprets interprets the law it is the law it is implementingimplementing

Agency Agency finds factsfinds facts about the about the situationsituation

Agency Agency uses discretionuses discretion in applying in applying law to facts law to facts

Standard of Review for Standard of Review for Most Agency DecisionsMost Agency Decisions

APA § 706(2)(a):APA § 706(2)(a):

A court may set aside agency A court may set aside agency action that is “arbitrary, action that is “arbitrary, capricious, an abuse of capricious, an abuse of discretion, or not otherwise in discretion, or not otherwise in accordance with law.”accordance with law.”

The “Hard Look” Doctrine: The “Hard Look” Doctrine: Citizens To Preserve Overton Citizens To Preserve Overton

Park v. VolpePark v. Volpe, 401 US 402 (1971), 401 US 402 (1971)

Must review if there is “law to apply”Must review if there is “law to apply” Court must “make a thorough Court must “make a thorough

examination of the entire record” and examination of the entire record” and inquiry into the facts is to be “searching inquiry into the facts is to be “searching and careful”and careful”

Standard of review is arbitrary and Standard of review is arbitrary and capricious: “whether the decision was capricious: “whether the decision was based on a consideration of the relevant based on a consideration of the relevant factors and whether there has been a factors and whether there has been a clear error of judgment”clear error of judgment”

Emphasis on quality of agency’s reasoningEmphasis on quality of agency’s reasoning

The “Soft Glance”: The “Soft Glance”: Vermont YankeeVermont Yankee

Upheld grant of nuclear power plant Upheld grant of nuclear power plant licenses despite lower court findings licenses despite lower court findings that agency failed to consider or that agency failed to consider or analyze certain environmental effectsanalyze certain environmental effects

Courts cannot impose procedural Courts cannot impose procedural requirements beyond those in the APArequirements beyond those in the APA

It is inappropriate for courts to It is inappropriate for courts to reexamine policy choices under guise reexamine policy choices under guise of judicial reviewof judicial review

Judicial Review of Statutory Judicial Review of Statutory InterpretationsInterpretations

Chevron v. NRDCChevron v. NRDC (S. Ct. 1984), aka (S. Ct. 1984), aka “Chevron Two-Step” “Chevron Two-Step”

STEP 1: Did Congress speak directly STEP 1: Did Congress speak directly to the precise question at issue? to the precise question at issue?

STEP 2: If not, is the statute silent or STEP 2: If not, is the statute silent or ambiguous with respect to the issue? ambiguous with respect to the issue? If so, agency interpretation upheld if If so, agency interpretation upheld if reasonablereasonable

Why Do Agencies Lose Why Do Agencies Lose Cases?Cases?

Key Information Not In the RecordKey Information Not In the Record Key Scientific Information IgnoredKey Scientific Information Ignored Tainted by Ex Parte Contact Tainted by Ex Parte Contact Unreasonably failing to analyze or Unreasonably failing to analyze or

consider other perspectivesconsider other perspectives Drastic, unexplained change in Drastic, unexplained change in

policypolicy No Intelligible Rationale for DecisionNo Intelligible Rationale for Decision

What does the agency What does the agency have to do to satisfy APA have to do to satisfy APA

standards?standards?In a nutshell: CLEAR EXPLANATIONS!In a nutshell: CLEAR EXPLANATIONS!

““The agency must examine the relevant The agency must examine the relevant data and articulate a satisfactory data and articulate a satisfactory explanation for its action including a explanation for its action including a rational connection between the facts rational connection between the facts found and the choice made” found and the choice made”

Motor VehiclesMotor Vehicles, 463 U.S. at 43. , 463 U.S. at 43.

Judicial Remedies for Judicial Remedies for Agency Violations of LawAgency Violations of Law

Declaratory Judgment

Writ of Mandamus

Injunction (Preliminary or Permanent)

Attorney’s fees and expenses

Money damages