Reviewability - general

1. Reviewability - general • APA § 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. • APA § 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. • Supreme Court – APA provisions create a “basic presumption” of judicial review • APA is a default statute – applies where organic statute does not contain it’s own “special review provision”

2. The (sometimes complicated) interaction of special review provisions & the apa • OCSLA, 43 U.S.C. §1349(a)(1) – private right of action to any person “having a valid legal interest which is or may be adversely affected” by any violation of OCSLA or implementing regs. BUT citizen must give 60 day notice to Interior Sec’y prior to filing lawsuit. • 43 U.S.C. §1349(a)(3) possible exemption from notice if defendant poses “imminent threat” to plaintiff • Plaintiffs in BP drilling moratorium litigation did not follow notice requirement. • DCT found that APA judicial review provisions (Sec. 702/704) applied because §1349(a)(1) applied only to suits alleging violations of OCLSA (i.e., suits alleging failure to implement regs or misreading of statute) • Here the suit alleged that moratorium was an arbitrary & capricious implementation of OCSLA but not that there was a violation of the statute in traditional sense

3. What Is “Agency Action”? • Litigant (individual or group) can only obtain judicial review of “agency action” • Note both Sections 702 & 704 use that term • What is “agency action”? • APA § 551(13): “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 • How often are agency activities likely to fall into this definition?

4. Norton v. SUWA – the facts Wilderness Act – “designated wilderness areas” with certain exceptions “shall have no commercial enterprise and no permanent road,” no motor vehicles, and no manmade structures. Only Congress can designate a wilderness area The Sec’y of Interior can designate “Wilderness Study Areas” (WSA’s) that have “wilderness characteristics.” 42 USC § 1782(c). FLPMA of 1976 requires that Sec’y shall manage such lands so as not to “impair” their suitability for preservation as wilderness areas. SUWA sued BLM & Sec’y for failing to act to protect public lands in Utah from damage caused by off-road vehicle use. Sought declaratory & injunctive relief

5. Norton v. SUWA – the legal claims • Under what provision of APA § 706 does plaintiff argue the court should judge the agencies action? • Why does the Court reject plaintiff’s claim? Is it because an agency’s “failure to act” generally does not amount to agency action? What does APA § 551(13) suggest? • What actions of the BLM were plaintiffs challenging? What did the plaintiffs want the court to do? Why would granting relief (in the form of an injunction or declaration be problematic?

6. Exceptions to Judicial Review - Preclusion APA § 701 - Application; definitions This chapter applies, according to the provisions thereof, except to the extent that - (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law Questions re preclusion: Why would Congress preclude judicial review? What does it mean for a statute to “preclude” judicial review – i.e., how do we interpret the APA preclusion provision? What are the costs and benefits of preclusion?

7. Johnson v. Robison Robison was denied educational assistance benefits under Veteran’s Readjustment Act because he didn’t serve “active duty” as a conscientious objector. He challenged the denial as violating 14th & 1st amendment rights. 38 USC § 211(a) – The decisions of the Veterans’ Administrator on any question of law or fact under any law administered by the VA providing benefits for veterans ... shall be final and conclusive and no other official or any court of the US shall have power or jurisdiction to review any such decisions by an action in the nature of mandamus or otherwise. Why do you think Congress passed this statute? What are the benefits/purposes of precluding review? Are those purposes served by precluding the constitutional arguments raised by plaintiffs?

8. Johnson v. Robison, cont’d • Why does the Court rule that Robison’s constitutional challenge was not precluded here? • Does it’s decision suggest that such challenges can never be precluded? • What if Congress enacted a preclusion provision like the following: • No action against the United States, the Secretary of HHS, or any officer or employee thereof, shall be brought under 42 USC Sec. 1331 [federal question jurisdiction] or Sec. 1336 [federal defendant jurisdiction] to recover any claim arising under this Act. • What problems arise with attempts to preclude all judicial review?