Getting into Court

1. Getting into Court • Last week we talked about the statutes that provide jurisdiction to get into court at all • If you can get into court, then there are three more hurdles: • Preclusion - has Congress limited judicial review of certain matters? • Standing - does your client have the right interest to bring the case? • Exhaustion of remedies - are you finished with the agency?

2. Basic Constitutional Question - Unresolved • Except for certain cases which the Constitution gives to the United States Supreme Court, all of the jurisdiction of the federal courts was granted by Congress • Can Congress take away long-standing jurisdiction? • Can Congress take away jurisdiction over basic constitutional rights like habeas corpus?

3. Preclusion of Judicial Review • What is the effect of precluding judicial review? • Is this favored by the courts? • Where does Matthews v. Eldridge come in? • When would you expect the courts to be most open to preclusion of review?

4. When is Preclusion a Good Policy? • The president's decision to accept or reject a list of base closings • An agency's decision to quit funding a health program out of lump sum appropriations • An agency's refusal to reconsider its own decisions • The CIA director's decision to fire an employee when the statute says he can do so whenever such termination is necessary or advisable in the interests of the united states • (the decision was reviewable on constitutional grounds)

5. What are You Really Asking the Court to Review? • The key in cases where preclusion is an issue is what you really want reviewed. • Is it a fact found by the agency? • An exercise of agency discretion? • Whether the agency is acting beyond its legal authority? • Whether the agency is acting constitutionally?

6. Statutory Limits on Judicial Review • The courts read statutory limits on judicial review very narrowly • Abbott stated the modern policy • There should be agency review unless the statute clearly precludes review • Even when the statute seems to preclude review, the courts will often allow review anyway.

7. Bowen v. Michigan Academy of Family Physicians • Dispute over the policy on the payment rate for Medicare Claims • Individual claims are decided by private contractors called fiscal intermediaries • Why did congress preclude review of individual claims decisions? • What is the Matthews analysis? • What is the distinction between reviewing the regs and reviewing the individual claims?

8. Limiting Review of Regulations • Congress can put a statute of limitations on the review of regs • Often 60 days • What if do not know about the applicability of the reg until later? • What cannot be precluded?

9. Committed to Agency Discretion • The statute may also preclude judicial review by committing the matter to agency discretion • This is a broad limitation on review and is construed narrowly.

10. Classic Examples • Prosecutorial discretion • Can you sue prosecutors to force them to bring prosecutions? • Can you think of a possible exception? • Agency enforcement decisions • What was the prisoner’s claim in Heckler v. Chaney? • (Court could have dodged on a medical practice argument) • What will you have to show to get a court to force action?

11. Modern Formulation for Committed to Agency Discretion: No Law to Apply • Judicial review must be based on some standard • Constitutional cases are decided by reference to the constitution • Chevron cases are decided by looking at the enabling act giving the agency power • If the agency action satisfies both of these, then further review depends on finding criteria to evaluate the agency action

12. Agency Discretion Implies Freedom to Decide • Why is the problem of no law to apply the real reason why the courts do not review discretionary actions? • This is the key to discretion cases, esp. cases like Heckler v Chaney, where there is no statute or regulation to set the standard of conduct • Why does this make it nearly impossible to review an agency's discretionary failure to act?

13. What Can You Do if the Agency Claims it does not have to Act? • (i) is it really discretionary? • (ii) is it based on a erroneous legal determination? • (iii) does the statute allow a private right of action against the regulated party, say for adverse health effects? • (iv) you can petition the agency to promulgate a rule requiring the action • (v) use political power to force the agency to act

14. Standing

15. The Constitutional minimum for standing - Case or Controversy • 1) injury in fact that is • a) concrete and particularized and • b) actual or imminent, not conjectural or hypothetical • 2) causal connection between the injury and conduct complained of, it must not be due to the action of some third party not before the court • 3) it must be likely, not speculative, that the injury will be redressed by a favorable decision

16. § 702. Right of review • 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.

17. Injury in Fact and Zone of Interest Tests • How personal does the injury have to be? • This is the core of many environmental actions, but is also a key issue in the business world • Should Sun have the right to contest an FTC settlement with Microsoft?

18. Association of Data Processing Service Orgs. V. Camp • Comptroller of the Currency allowed national banks to offer data processes services. • Plaintiffs, who represent other data processors, claim this violates the national bank act • First question - is there injury in fact?

19. Second question - is this interest within the zone of interests meant to be protected by the law? • APA 702 - "aggrieved by agency action within the meaning of a relevant statute" • Must the injury be economic? • Flast - - first amendment challenges to school prayer • What is the statutory issue? • The act says banks can only do banking services for banks • Could be to protect bank customers, not competitors of banks

20. What does the court say about the purpose of the statute? • Does give standing to competitors since it directly implicates their business • Could the court have decided this differently? • Doesn’t every regulation that affects a business also affects its competitors?

21. Third question - has judicial review been precluded? • Preclusion is an extreme result • The court will seldom find that review is precluded unless it is specifically provided for by the statute • No preclusion provisions in the national bank act

22. Air Courier v. American Postal Workers Union • Private Express Statute - Gives USPS a monopoly on first class mail • USPS wants to suspend it to allow courier services like Fed Ex • Union fights this, says it will reduce jobs in the USPS

23. Why is the date the act was passed important to determining Congressional intent? • Act was passed in 1792 - no postal workers • What did the court determine was the purpose of the act? • Why was this an important purpose? • Were the postal workers in the zone of interest?

24. Does Congress or the Constitution Control Zone of Interest? (corrected) • Congress can control this aspect of standing, making it broad or narrow in the enabling act • If Congress is silent, then 702 controls

25. How was this illustrated in Sierra Club v. Morton (1972)? • The Sierra club cannot sue to preserve historic values just because it is interested in them. • Must show that a member has independent standing

26. What did Congress do with standing in the Endangered Species Act? • Allowed "any citizen" to sue to enjoin certain actions under the act • What was the effect of this provision on the zone of interest test? • Court said this abolished the zone of interest test in these situations • Zone of interest is more difficult for the courts to determine than injury in fact

27. Lujan v. Defenders of Wildlife • Plaintiff went to Sri Lanka and saw endangered animals and was upset and they want to go back and see the animals again • Plaintiffs argue ecosystem standing • Everything is connected together so everyone has standing • Does the court buy this?

28. Animal Law • Should animals have standing? • What about very smart monkeys? • What about people who empathize with animals? • Rat Case • Could Congress grant animals standing, with a guardian ad litem, perhaps? • Could Louisiana?

29. Associations • What are the requirements for an association to have standing? • a) at least one of their members has standing • b) the interests the association seeks to protect are germane to the association's purpose • c) neither the claim nor the relief requires the participation of individual members in the lawsuit. • Why is this critical for civil rights and environmental groups?

30. Tax Payer Actions • Most states allow tax payers to contest what they claim are illegal expenditures of tax funds • Do the federal courts? • The feds do not, except in very narrow circumstances • Why not? • Would be a vehicle for contesting all government action

31. Standing of Government Agencies • In state law, many states allow agencies to contest the rulings of other agencies. • AG's Office in LA • Federal agencies can do the same only if there is specific statutory authorization • Otherwise, "an agency in its governmental capacity is not "adversely affected or aggrieved" by other agency regulations. • This driven by the different separation of powers issues in states v. the feds