1. Reviewability – General Principles SCT – APA has a general “presumption” of judicial review UNLESS: • Statutes preclude judicial review – Sec. 701(a)(1) Congress must make intent to preclude clear and SCT heavily disfavors preclusion of constitutional claims • Action is committed to agency discretion by law - APA § 701(a)(2) • Overton Park - statutes are unreviewable when they “are drawn in such broad terms that in a given case there is no law to apply.” • Courts usually cite to Overton Park’s “no law to apply” standard • Whether they actually apply that standard is a different question - Webster v. Doe: • Court cites traditional test BUT its focus on the statutory text & legislative intent is similar to preclusion • Congress INTENDED (“deemed”) discretion be in the Administrator • Scalia dissent – categorical exclusion = common law exclusions

2. Relationship between APA § 701(a)(2) & APA § 706(2)(A)? • The APA contemplates that agency action can be challenged as “arbitrary and capricious” under § 706(2)(A). • How, then, can the APA say that the some decisions have been committed to agency discretion so that they are “unreviewable”? • The general take on the differences: • APA § 706(2)(A) challenges – Congress has provided sufficient standards to which agency is supposed to adhere that allow judges to make an assessment (i.e., “prudent” & “feasible”) • Question for court is whether agency acted arbitrarily or capriciously • APA § 701(a)(2) – no clear standards exist so agency has essentially “unfettered” discretion • Court review is ineffective or, practically, impossible so agency decision is unreviewable • Anyone see a problem with this?

3. Committed to Agency Discretion – Prosecutorial Discretion/Failure to Institute Enforcement Proceedings • Heckler v. Chaney plaintiffs sought to compel FDA to institute enforcement proceedings under the FDCA. • Ps alleged certain drugs used in lethal injection death sentences were “unapproved uses” of “approved drugs” and violated “misbranding” & approval requirements of the FDCA. • Why did SCT find that the decision not to institute an enforcement proceeding under the FDCA was committed to agency discretion under APA § 701(a)(2)? • How is the refusal to institute an enforcement different from the decision to release highway funds in Overton Park? • Are enforcement proceedings perfectly analogous to prosecutorial discretion?

4. Prosecutorial Discretion/Failure to Institute Enforcement Proceedings – more on unreviewability • Consider Leedom & Bachowski. In both, SCT ruled the agency’s decision was reviewable: • Leedom – NLRB certified union to represent professional and non professional employees. Statute precluded union from representing conflicting groups. Agency decision to certify union was reviewable in this instance although it generally was not reviewable. • Bachowski – Sec’y did not institute a suit against a labor organization to set aside an invalid election. SCT said agency’s decision not to institute a suit was reviewable. • Is Chaney unlike these? If so, how are these different so that the Court reaches different result?

5. Committed to Agency Discretion – Agency Regulatory Inaction • Courts are reluctant to review agency inaction re enforcement decisions BUT agency inaction regarding regulation – i.e., the decision not to enact a rule – is rarely deemed unreviewable • Consider EPA’s refusal to enact rules regulating greenhouse gases in Mass. v. EPA – SCT denied that Heckler v. Chaney presumption applied to denial of petition to initiate a rulemaking. • Why would the courts treat these differently?

6. Committed to Agency Discretion – Resource Allocation & General Appropriations Statutes • What agency action do P’s challenge in Lincoln v. Vigil? • How does the agency get its money from Congress? • Why does this form of appropriation matter to SCT’s decision that agency action is unreviewable? • Is it because there is “no law to apply?” • Or does SCT take a different approach?

7. Committed to Agency Discretion By Law – a summary • This exception has a certain amount of internal incoherence given that it requires there to be “no standard” by which to judge agency action but that also creates a significant constitutional delegation problem. • While courts (including SCT) almost always invoke the traditional test, it’s not clear that is the test they are applying. • The better way to think about this exception to reviewability is to know that it is not applied that often. • And when it is applied (as Vigil noted), it is applied to certain categories of action where courts feel especially at a loss • Refusal to institute enforcement actions (like prosecutorial discretion) • Allocation of funds not specifically earmarked • Agencies where national security interests are directly implicated • Note how similar Norton v. SUWA reasoning re “agency action” is to all of this: • Can’t compel BLM action because the statute has no specific mandate and the management plan has nothing other than aspirational goals; combined with agency need to balance conflicting desires – judges have no role

8. What is “standing?” • The determination that a specific person/entity is the proper party to bring a matter to federal court • This is rarely a problem when P is directly affected by agency action (license denial or rule enforcement) • It is a harder question when P is more indirectlyaffected (i.e., argues that environmental regs hurt their “enjoyment” of environment) • Standing requirements • Constitutional Standing (3-prong inquiry) • Minimal requirement in every case – must have it to bring a federal lawsuit – but it is only the first step – Congress can limit standing. • Legislative standing • Congressional definition of a class of Ps who can sue • Only an issue with statutory claims • Why do we care whether someone is the “proper party” to bring suit?

9. Standing Under APA § 702 – Legislative Standing Requirements • APA Section 702: person may bring a lawsuit against an agency if: • He has suffered a legal wrong because of agency action OR • He is “adversely affected or aggrieved . . . within the meaning of a relevant statute” • Original interpretations of these phrases were heavily influenced by the common law approacheson the next slide:

10. Original Interpretation of APA § 702 - the legal right requirement • The “legal wrong” phrase: • A person had standing only if their constitutional or common law rights were violated – i.e., breach of contract, fiduciary duty, violation of tort law or constitutional obligation – or if a statutory right conferred on them was violated. • Example: Statute authorizes FCC to grant radio broadcast licenses in a particular area. FCC wrongfully grants a license to Station A in that area. Station B already has a license and wants to challenge FCC’s grant of a license to Station A because Station A will increase competition and decrease ad revenue to Station B. • In most cases, SCT would say Station B has no APA standing because no common law/constitutional obligation was breached & usually statutes weren’t read to protect a business from competition. BUT B might win if . . . • “Adversely aggrieved w/in meaning of relevant statute” phrase • If a statute had a special review provision broadly allowing lawsuits – SCT could read it as allowing lawsuit under the second phrase of Sec. 702 and conclude that the “legal right/wrong” test was met. • Federal Comm. Act– “Any person aggrieved or whose interests are adversely affected” by any decision of the Comm’n can file lawsuit

11. Ass’n of Data Processing Serv. Orgs. v Camp • Section 4 of the Bank Serv. Corp. Act bars bank service corps from providing any service other than bank services for banks • Comptroller of Currency allowed national banks to provide data processing services incident to their national banking services • Ps (data processing providers) sued claiming that CofC’s decision violated Section 4 • Data Processing’s approach: • Did P allege D’s actions cause P injury-in-fact? (constitutional issue) • Did the P’s satisfy statutory standing? • Inquiry: Is the “interest sought to be protected by the complainants arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee.” (APA issue) • Data Processing’s “zone of interest” test collapsed “legal wrong” & “special review” statute requirements into one inquiry: Is the plaintiff’s interest within the zone of interests the relevant statute is meant to protect?

12. “Zone of Interests” & legislative standing after Data Processing • SCT has generously interpreted “zone of interests” requirement • Only rarelyhas it held someone outside the “zone of interests” • Asks whether P’s interests are “marginally related” and “not inconsistent” with the purposes of the statutes P seeks to enforce • Statutes court reviews need not be a special review statute • SCT has been willing to look for implicitpurposes of variety of relevant statutes (Clarke) – most often the organic/enabling Act • BUT it is unwilling to look at JUST ANY statute. Statutes must be related to issue over which P is suing (Air Courier) • Role of special review statute & APA legislative standing • If an organic/enabling statute has a broad standing provision (i.e., “any person” can bring a lawsuit), SCT has been willing to allow P to bring suit even if the lawsuit seems inconsistent w/the purpose of statute • E.g., Bennett v. Spear (p. 308) – citizen suit provision allows ranchers to sue to prevent implementation of the Act