Chapter 5

Reviewability
A. Introduction
B. Standing: one of several judicial doctrines that serves to identify the
outer limits of Article IIIs requirement that federal courts only hear cases or
controversies. A question of jurisdiction. P has to have stake in the litigation
otherwise not controversy.
Associational Standing
1. members must have standing
a. injury in fact
b. causation
c. redressable by relief court can provide
2. Purpose
3. Individual members participation not be required
1. Injury in Fact
- injury has to be one that you yourself have experienced. Not putting
themselves among the injured when it comes to animals.
- HARAMBE WAS INJURED. HARAMBE IS THE ANSWER TO ALL OF THIS.
2. Causation and Redressability
-2 sides of the same coin when the relief sought
- The injury must be a result of government action and a favorable court
decision would remedy that injury.
3. Prudential Requirements
- The plaintiff cannot assert the rights of a third person. APA 702 delimits
this prudential requirement by granting a COA to a potential plaintiff who is
claiming the rights of a third person all that is required under this section is
that the plaintiff is suffering a legal wrong because of agency action.
4. Standing in the States
5. Litigation of Standing
Problem 5-1: Standing of Animal Rights
- If challenging an action at the onset, way you frame your complaint
can go a long way to foreclosing agency challenge.
- Minimum humane standards for keeping animals.
- Substantive argument that regulation doesn't prohibit solitary
confinement.
- How labeling challenge?
o 1. Substantive argument regulation permits solitary
confinement which is inhumane and wrong.
706(2) Arbitrary and Capricious challenge formulating.
Agency made a bad policy choice. Shouldve included
prohibition of solitary confinement.
o 2. Lack of notice and comment procedure
- No notice and comment.

Have to think about standing for each count in your claim.

Harms me because Im a taxpayer and don't like that money is going
to something they disapprove of. Trying to make argument that youre
injured because you care.

Lujan v. Defenders of Wildlife (1992) (Page 416)

Facts: The ESA was promulgated to protect endangered and
threatened animals. Under the authority of the ESA, the Secretary
declared that the ESA applied to actions outside of the United States.
Upon further review, the Secretary reinterpreted the ESA to be
applicable to actions only within the United States or the high seas.
The Plaintiffs, organizations dedicated to wildlife conservation, filed an
action against the Secretary seeking an injunction requiring the
Secretary to reinstate the initial interpretation of the ESA. The
Secretary moved for summary judgment due to a lack of standing and
the Plaintiffs moved for summary judgment on the merits. The District
Court denied the Secretarys motion and affirmed the Plaintiffs motion.
The Court of Appeals Affirmed the District Court.
o 7(a)(2) of the Endangered Species Act of 1973 (ESA), as
amended 16 U.S.C. 1531 et seq., requires federal agencies to
consult with the Secretary of the Interior or Commerce before
undertaking actions that might jeopardize endangered or
threatened species. The ESA provides that any person may
initiate a civil suit on her own behalf to enjoin anyone, including
governmental entities, from violating the ESA. In 1978, the
Secretaries promulgated a joint regulation stating that the ESA
consultation requirement extended to federal actions taken in
foreign nations. A new joint regulation limiting the geographic
scope to the United States and the high seas was proposed in
1983 and adopted in 1986. Organizations dedicated to the
protection of wildlife (plaintiffs) sued the Secretary of the Interior,
Lujan (Secretary) (defendant), seeking a declaratory judgment
that the new regulations interpretation was wrong and an
injunction requiring the Secretary to restore the initial
interpretation of the geographic scope of the statute. The
plaintiffs argued they were injured because a lack of consultation
for governmental activities abroad increases the rate of
extinction of endangered species. The Secretary moved to
dismiss based on the plaintiffs lack of standing. The district
court granted the motion, but the court of appeals reversed and
remanded. The district court then granted the plaintiffs
summary judgment motion and issued the injunction. The
appellate court affirmed. The United States Supreme Court
granted certiorari.

Issue: Plaintiffs have standing to challenge the Secretarys

interpretation of the ESA under either traditional rules of standing or
the individual cause of action created within the ESA?
Rule: Congress cannot create standing when an injury in fact, a causal
connection and redressability are not present.
Holding: No. Judgment reversed. The case and controversy
requirement of Article III creates three minimal elements in order to
have standing. The plaintiff must have suffered (i) an injury in fact;
(ii) there must be a causal connection between the injury and the
conduct complained of; and (iii) it must be likely that this injury will be
redressed by a favorable decision. In this case, the Plaintiffs failed to
establish injury in fact or redressability. Because of the limited effect of
the ESA, it is too speculative to claim that not enforcing an injunction
on the Secretary would result in an injury in fact to any of the Plaintiffs.
Likewise, it is too speculative to assume that any redress by the courts
would have substantial impact on threatened species outside of the
United States. The Plaintiffs claim that they suffered a procedural
injury established by a citizen-suit provision within the ESA is also
without merit. To permit standing based on this Congressional Act
would usurp the power of the Executive to take Care that the Laws be
faithfully executed.
o No. A plaintiff may not litigate a generalized complaint against
the government based on harm suffered equally by all citizens.
Standing under Article III of the Constitution contains three
elements. First, a plaintiff must have suffered an actual injury. An
injury in fact is an invasion of a legally protected interest which
is (a) concrete and particularizedand (b) actual or imminent.
Second, the plaintiff must show a causal link between the harm
and the conduct at issue. This means that the injury is fairly
traceable to the challenged actionand not the result of the
independent action of some third party. Third, it must be
probable that a favorable verdict will redress the harm. The
burden is on the plaintiff to demonstrate these elements.
Allowing citizens to sue over an abstract right to have the
Executive Branch follow statutory procedures implicates the
separation of powers doctrine. Here, the plaintiffs failed to show
that threats to endangered species cause them imminent injury.
Their theories regarding an ecosystem, animal, or vocational
nexus justifying standing for individuals who want to study, see,
or work with such animals are too speculative. The plaintiffs also
failed to show how a favorable outcome would redress their
alleged injury. Conjecture regarding redressability is insufficient
to support standing. Additionally, the plaintiffs have not suffered
a procedural injury that justifies standing under the citizen-suit
provision of the ESA. The plaintiffs are suing over a generally

available complaint about the government, not seeking to

enforce a procedural requirement that protects a separate,
concrete interest. Accordingly, the decision of the court of
appeals is reversed.
o Concurrence (Kennedy, J.)
Although the plaintiffs have not made a sufficient showing
to establish standing based on one of their nexus theories,
a similar theory might support standing under different
circumstances. Additionally, Congress has the power to
define injuries and articulate chains of causation that will
give rise to a case or controversy where none existed
before. Congress has not done this with citizen-suit
provision of the ESA, as the provision does not specifically
identify the injury it seeks to vindicate and relate the
injury to the class of persons entitled to sue.
o Concurrence (Stevens, J.)
The Courts finding that the plaintiffs failed to show an
imminent and redressable injury is flawed. Nonetheless,
reversal of the decision of the court of appeals is warranted
because it is not clear that Congress meant for the
consultation requirement of the ESA to apply to federal
government activities in foreign nations.
o Dissent (Blackmun, J.)
The Secretary was not entitled to summary judgment,
because the plaintiffs raised genuine issues of fact as to
injury and redressability. Additionally, the Courts general
rejection of standing for plaintiffs with procedural injuries
is too broad and may interfere with or limit the
constitutional authority of Congress to allow citizen-suits in
federal court. Congress could have simply issued a
mandate barring executive actions that harm endangered
species. Instead, Congress legitimately gave the Executive
Branch a measure of discretion in implementing the law,
subject to review for procedural violations by courts. Such
review is one reason Congress has generally been given
the benefit of the doubt when delegating tasks to the
Executive Branch.
Dissent: The Plaintiffs have raised genuine issues of fact as to both
injury and redressability. Additionally, the courts enforcement of
Congressional Acts through the citizen-suit provision do not violate
separation of powers
Concurrence: Congress does have the power to create standing
where it had not existed before, but must identify the injury it seeks to
vindicate and relate that injury to those bringing suit.

Reasoning: Congresss citizen-suit provision in the ESA was

unconstitutional because it created a law where federal courts would
be forced to recognize suits where no real world harm had occurred.
Notes:

MA v. EPA regulating greenhouse gases from automobiles, coastal regions,

melts polar ice caps, sea levels raised. Polar bears die. Similar to Lujan, but
still going to be greenhouse gases polluting the air. Analogous to Lujan.
There was standing in this case.
- If agency trying to win on standing grounds, make parties be states.
Problem 5-3: Standing and Risk (439)
- Reframe that injury that would take the focus off getting cancer and
put it in something that is present day that more people are going to
argue affects them?
- Have to buy more expensive organic food because of pesticide. Have
to take concrete steps now because of this threat making it not a
hypothetical injury.
Monsanto Co. v. Geertson Seed Farms (2010) (Page 440)
Facts: Geertson Seed Farms ("Geertson") and Trask Family Seeds
("Trask") sought an injunction against Monsanto Company
("Monsanto") in a California federal district court. Geertson and Trask
feared that the wide-scale sale of a new Monsanto alfalfa variety,
resistant to one of the company's herbicides, would lead to crosspollination with Geertson's and Trask's conventional alfalfa variety and
thereby lead to its disappearance. The district court granted the
injunction pending an Environmental Impact Statement ("EIS") about
the effect of Monsanto's new alfalfa variety. On appeal, the U.S. Court
of Appeals for the Ninth Circuit affirmed holding that the injunction was
appropriate and that an evidentiary hearing was not required before
the issuance of the injunction.
o Threat is hypothetical but present injury is because of that threat
we have to take concrete steps that are expensive. Have to
change behave in the present because of the threat.
o Compared with Clapper. No concrete evidence in Clapper case
while in Monsanto there was.
Issue: 1) Did the Ninth Circuit err in holding that the plaintiffs are
exempt from showing a "likelihood of irreparable harm" to obtain an
injunction? 2) Did the Ninth Circuit err in holding that a district court
may enter an injunction without conducting an evidentiary hearing?
Holding: No. Yes. The Supreme Court first held that the plaintiffs have
standing to seek injunctive relief. However, the Court further held that
the district court abused its discretion when it entered an injunction
absent the completed EIS. With Justice Samuel A. Alito writing for the

majority, the Court reasoned that no factor favoring the imposition of

an injunction yet existed.
o Justice John Paul Stevens dissented. He argued that the district
court's findings of fact all supported the imposition of an
injunction: (1) the new alfalfa variety could contaminate other
plants, (2) contamination could take place even in a controlled
setting, (3) the relevant regulator has limited ability to control or
limit limitations on planting, and (4) genetic contamination could
decimate farmers' livelihoods all supported.
Notes:

Clapper v. Amnesty International USA (2013) (Page 441)

Facts: The Foreign Intelligence Surveillance Act of 1978 (FISA)
authorized the United States government to conduct surveillance on
non-U.S. citizens that were outside the U.S. Amnesty International USA,
et al. (plaintiffs) are lawyers, journalists, and human rights researchers,
among other things, who do work that often has them communicating
with individuals abroad that the plaintiffs claimed are likely to be
subject to surveillance under FISA. The plaintiffs brought suit seeking a
declaratory ruling that this portion of FISA was unconstitutional. The
plaintiffs claimed that there was an objectively reasonable likelihood
that the plaintiffs communications would be recorded under FISA.
Alternatively, the plaintiffs claimed that given the risk of surveillance,
they had to spend significant funds to ensure that their
communications were kept confidential. The court of appeals ruled that
the plaintiffs had standing to bring the suit. The United States Supreme
Court granted certiorari.
o fear of surveillance isnt enough for cognizable injury.
Issue: Must threatened injury be certainly impending to constitute
injury in fact for purposes of Article III standing?
Rule: Threatened injury must be certainly impending to constitute
injury in fact for purposes of Article III standing.
Holding: Yes. To establish standing, a party must establish that its
injury is concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a favorable
ruling. More specifically, threatened injury must be certainly
impending to constitute actual or imminent. In the present case, the
plaintiffs do not present any evidence that their communications have
been intercepted by FISA. To the contrary, they merely claim that there
is an objectively reasonable likelihood that their communications will
be intercepted in the future. However, the plaintiffs have no knowledge
of how the government uses or plans to use this portion of FISA. For
the plaintiffs speculations to come true, five separate occurrences
must come to fruition: (1) the government must decide to target
individuals with whom the plaintiffs communicate; (2) the government

must target those individuals with their powers under FISA versus
some other surveillance authority; (3) the Foreign Intelligence
Surveillance Court judge must rule that the government satisfied the
requirements of FISA; (4) the government must actually intercept
communications from these individuals; and (5) the plaintiffs must
actually be the ones communicating with the individuals when the
communications are intercepted. Additionally, even if the plaintiffs
could establish that their harm was certainly impending, they still
cannot establish that the harm is fairly traceable to FISA, because, as
noted under (2), there are other surveillance options available that the
government could have used. In sum, the plaintiffs do no more than
speculate that the surveillance may occur in the future and that is not
sufficient to meet the standing standard. Finally, the plaintiffs
argument that they have incurred costs due to fear of future
surveillance also fails for many of the same reasons. The plaintiffs
cannot manufacture standing by spending money in anticipation of a
harm that the Court has already determined is not certainly impending.
The plaintiffs do not have standing. The court of appeals is reversed.
Dissent: Based on affidavits the plaintiffs submitted, the plaintiffs
harm in this case is not speculative, but actually very highly likely. The
plaintiffs represent, interview, and otherwise communicate with a
number of individuals that have been subject to surveillance in the
past. Common sense tells us that these individuals will be subject to
surveillance under FISA in the future and that because the plaintiffs will
continue to communicate with them, the plaintiffs will also be subject
to surveillance. The majoritys construction of the word certainly is
too rigid; in actuality it should be construed as reasonable probability
or high probability.

10/31/16 Notes:
Quiz:
1. comparing formal adjudication and rulemaking
2. due process clause and when applied?
3. which would be upheld?
4. interpretive rule and policy definition
5. chevron/auer fill in the blank
-

The fact that you have to have standing for every single count in your
complaint is significant.
2 theories of standing:
o injury comes from what agency did (substantive injury) vs.
o how agency did what it did
Lujan was harmed by what agency did and how agency did what it did.
Lujan consultation requirement with secretary of interior, the fact that
didn't happen was itself an injury to them. Absence of consultation
separate from its effects?

Citizen suit provision at issue in this case any person may

commence a civil suit to enjoinan agencywho is in violation of this
statute. goes against ESA to restrict consultation which is a
cognizable injury.
o In some situations, this is necessary for citizens to bring suit
against the government.
o Unconstitutionally applied in Lujan, cannot be basis for standing
in this case.
Congress has said they have standing when the statute is that broad.
SC disagrees. Constitution restrains Congress.
In what ways is it unconstitutional that congress has tried to authorize
everybody to bring a suit against the government for a procedural
violation?
o Article III gives federal court jurisdiction case or controversy
o Generalized grievance
o Absence of a consultation? already decided that these
plaintiffs dont have a substantive injury. Only argument is the
fact that agency bypassed this procedure is in fact the cause of
harm. Government didn't follow the law, injured in same way as
everyone else.
Congress overstepping constitutional bounds (Scalia) take care
clause in Article II of Constitution. When congress tries to confer
standing to increase citizens bringing actions against the government.
Take care that the law be faithful executed, presidents job of
enforcement and congress usurps presidents job when it gives it to
citizens instead.
To establish standing, a plaintiff must show the 3 constitutional
minimal requirements of Article IIIs case and controversy:
o (1) Injury in fact (Concrete legally protected interest &
Actual/imminent),
o (2) Causation (fairly traceable),
o (3) Redressability (favorable decision, look to case law).
A speculative injury does not qualify as an injury in
fact. A plaintiff must allege that the government acted
illegally, causing an injury which constitutional law will
recognize, and asking for appropriate redress for that
injury.
Stevens concurred in the judgment b/c didn't think consultation
requirement should extend overseas. Thought substantive injury.
What could be distinguishable? No concrete connection to any
individual out there.
o Can confer standing on people wo are also experiencing a
procedural injury.
o Instead of requiring the consultation to happen, congress
requires the consultation to happen in public? Who has a

concrete injury when that happens? The person who would have
gone to the consultation and didn't get to. Something arguable
different there about that kind of procedural injury. Instead of
saying procedural injury happened in the abstract and Im upset
about it.
o Generalized grievances
o Other kinds of procedural violations that the general public can
challenge when they dont occur:
Environmental impact statement procedural
requirement. Who can sue when the government should
have and didn't? people affected by the project itself. Also
argue procedural injury occurs by anyone that wanted to
read the report that didn't prepared (abstract)
Notice and comment assume dont have substantive injury
(members not going to be affected by seeing animals in solitary
confinement) only able to argue that injured by lack of opportunity to
participate in notice and comment.

Summers v. Earth Island Institute (429): In 1992, Congress enacted a statute

that required the United States Forest Service to establish a notice,
comment, and appeal process for proposed actions of the Forest Service
concerning projects and activities implementing land and resource
management and plans developed under an Act from 1974. Regulations later
passed by the Forest Service established that certain projects would not be
subject to the N&C period or the appeals process because they were
environmentally insignificant. The Forest Service chose to exempt small firerehabilitation and timber-salvage projects. The Earth Island Institute brought
suit to challenge this exemption. The issue in this case is whether Earth
Island had standing.
- People who want to challenge agencys new project of restricting
smaller projects to notice and comment? No?
- Substantive injury arises from what the agency decides not how the
agency decides.
- If truly a separate injury, out to have that right. Court denied standing
in their case. Even in notice and comment cases, unless comment
affects something specific and ongoing and arguably that you have
connection to, mere fact that didn't get notice and comment might not
be enough for standing.
Quiz:
1. Formal Adjudication and Formal Rulemaking
- formal rulemaking does not have notice and comment. It is trial like
procedures.
2. Due process clause?

- life liberty and property, individual determination by a government that

affects those fundamental rights
- a set of factors that court use to answer the question of what is the
severity of the deprivation at stake and what are the values. Matthews v.
Eldridge.
- has to be individualized determination
3. Coca- Cola test because of case of first impression. Have to remember
which way that cut. Agency should have more power to engage in
retroactive enforcement in a case of first impression.
4. Policy Statements and Interpretive Rule
Interpretive rules agency is clarifying some other source of binding law,
whether it is a regulation or a statute.
Policy prospective or foreshadowing how the agency plans to exercise
discretion
5. Chevron v. Auer
Chevron contained in a legislative rule or nonlegislative rule where
congress intends deference to apply.
Auer outer limit and parroting
11/2/16
IV. Reviewability
A. Standing
B. Preclusion
- Statutes preclude: expressly or impliedly 701
- express example is IRCA
- if congress had meant for it to be there they would have
done it when it comes to judicial review being foreclosed.
- committed to agencys discretion
C. Finality
D. Exhaustion
E. Ripeness
Abbott Labs The Federal, Food, Drug, and Cosmetic Act (FFDCA)
requires manufacturers of prescription drugs to print the established
name of the drug and any other prominent name of the drug. The purpose
of the Act was to alert doctors and patients of generic drugs that are
exactly similar to the more expensive brand name drugs. The
Commissioner for the FFDCA promulgated an order which required labels,
advertisements, and other printed matter relating to prescription drugs to
designate the established name of the particular drug involved every time
its trade name is used. The Pharmaceutical Manufacturers Association
brought suit challenging the Commissioners authority to promulgate the

rule. The issue in this case was whether the Pharmaceutical

Manufacturers Association could bring this pre-enforcement review action.
Block v. Community Nutrition Institute complex administrative scheme
that agency had established under authority to regulate prices of milk.
Implied preclusion of judicial review. It would not have made any sense to
permit certain regulated entities and to permit direct access to the courts
by another group of people. People who were regulated were people who
produced milk.
- (1) It was clear from the Act that Congress did not intend to strip the
judiciary of all of its authority to review the Secretarys orders; but it was
equally clear that Congress did intend to limit the classes entitled to
participate in the development of market orders to only handlers and
producers.
- (2) Implied Preclusion: The structure of the Act implies that Congress
intended to preclude consumer challenges to the Secretarys market
orders.
In Abbott, the court required clear and convincing evidence that
Congress intended to preclude judicial review, but in Block the Court
indicated that this standard is satisfied if congressional intent to preclude
review is Fairly discernible in the statutory standard.
701(a)(2) circular relationship between 1 and 2. If preclusion of review
has the consequence of committing to the agencys discretion. If court
cant conclude it then agency has discretion.
C. Exclusions from Judicial Review Under the APA
1. Statutory Preclusion
-

701 (a)(1) of the APA makes clear that judicial review is not available
when statutes preclude judicial review or the agency action is
committed to agency discretion by law. These types of statutes are
rare, but many statutes limit judicial review to certain circumstances,
rather than precluding it altogether. The courts tend to not interpret
statutes as precluding judicial review because (1) it would most likely
be unconstitutional to preclude constitutional claims, and (2) the APA
provides a cause of action for any person harmed by agency action.
(Very rare courts generally do not limit judicial review)

Problem 5-4: Environmentalists and Land Exchanges

2. Committed to Agency Discretion

701 (a)(2) If an action is committed to agency discretion by law

(i.e. omits a standard under which to exercise discretion of agency)
review will be precluded. In other words, if a statute grants discretion
to an agency, and the law omits a standard under which to assess the
exercise of that discretion, then Congress has committed that action to
agency discretion by law. (Very rare)
o Citizens to Preserve Overton Park, Inc. v. Volpe. If there is
no law to apply then the action is committed to agency
discretion. (i.e. no standard)
Note: this means that Congress had created such a broad
statute that a court would have no meaningful standard
against which to judge the agencys exercise of discretion.

Problem 5-5: Refusal to Waive Regulation

Heckler v. Chaney (1985) (Page 464)
Facts: Individuals who were sentenced to death by lethal injection of
drugs in Oklahoma and Texas (plaintiffs) filed a petition with the Food
and Drug Administration (FDA). In their petition, the plaintiffs argued
that the FDA had not approved the use of such drugs for human
executions. For this reason, the plaintiffs contended that the states
use of the drugs for human execution violated various provisions of the
Federal Food, Drug, and Cosmetics Act (FDCA). In their petition, the
plaintiffs requested that the FDA take certain investigatory and
enforcement actions to prevent such violations. The FDA refused the
plaintiffs request. The plaintiffs then made a similar request in federal
court in a suit against the Secretary of Health and Human Services
(Secretary) (defendant). The United States Supreme Court granted
certiorari.
o Arguing that FDA is failing to enforce the off label use of the
drug.
o Agencies set own priorities about enforcement
o Always two methods of enforcement: courts or
congress/president
o When an agency acts it is to enforce an regulation
Issue: Is an agencys decision not to take enforcement action
presumed immune from judicial review under 701(a)(2) of the APA?
Rule: 701(a)(2) of the Administrative Procedure Act (APA) bars judicial
review of agency action where such action is committed to agency
discretion by law.
Holding: Yes. 701(a)(2) of the APA bars judicial review of agency
action where such action is committed to agency discretion by law.
This section applies even where Congress has not affirmatively
precluded review. It bars judicial review when a statute offers no
meaningful standard off of which a court may judge the agencys

exercise of discretion. An agencys decision not to take enforcement

action is presumed immune from judicial review under 702(a)(2). This
presumption of unreviewability may be rebutted where a statute
provides the agency with guidelines for the exercise of the agencys
enforcement powers. Here, the FDCA provides no substantive
standards against which courts may base review. Accordingly, the
FDAs decision to not take the enforcement actions that the plaintiffs
requested is not reviewable under the APA.
Concurrence- Brennan: There are a number of circumstances under
which agency nonenforcement decisions will be reviewable. Given that
hundreds of agencies make such decisions every day, it makes sense
to presume that Congress does not intend that courts review such
matters absent another indication of congressional intent to the
contrary or proof of the existence of such circumstances.
Concurrence Marshall: The presumption of unreviewability
announced by the Court is the wrong basis upon which this case should
be decided. Instead, the basis should be that agency refusals to
enforce are reviewable in the absence of a clear and convincing
congressional intent to the contrary, and that such refusals warrant
deference when, as here, nothing suggests that an agency with
enforcement discretion has abused such discretion.
Notes:

Webster v. Doe (1988) (Page 471)

Facts: John Doe (plaintiff) began working for the Central Intelligence
Agency (CIA) in 1973. Over the course of his time at the CIA, Doe
received excellent reviews and a promotion. In 1982, he informed a CIA
security officer that he was gay. The Director of the CIA (Director)
(defendant) then fired Doe on the ground that his homosexuality posed
a threat to security. Doe sued the Director, arguing that the agencys
decision to fire him violated the Administrative Procedure Act (APA) and
deprived him of his constitutionally protected rights to privacy, liberty,
and privacy, procedural due process, and equal protection. In response
to Does suit, the Director argued that 102(c) of the National Security
Act (NSA) precludes judicial review of his dismissal decisions. The court
of appeals found that Does termination was reviewable. The United
States Supreme Court granted certiorari.
Issue: Can constitutional claims arising out an agencys action be
reviewable where the statute affording the agency authority to engage
in that action does not clearly preclude the review of constitutional
claims?
Rule: When Congress intends to preclude review of constitutional
claims, its intent to do so must be clear.
Holding: Yes. Under 701(a)(2) of the APA, courts may not review an
agency decision where the agency action is committed to agency

discretion by law. Under this provision, an agency decision is

unreviewable where the statute is drawn in such a manner that a court
would have no meaningful standard against which to judge the
agencys exercise of discretion. Additionally, when Congress intends to
preclude review of constitutional claims, its intent to do so must be
clear. Here, the provision of the language and structure of the NSA
indicate that Congress meant the Director to have discretion over the
termination of individual employees. As such, 701(a)(2) of the APA
precludes judicial review of the Directors termination decisions under
the APA. Yet, it is not clear from 102(c) of the NSA that Congress
intended to preclude review of colorable constitutional claims arising
out of the Directors actions under that provision. Accordingly, the
district court may review a constitutional claim based on an individual
discharge.
Dissent - Scalia: The Directors termination decision is unreviewable
under 701(a)(2) of the APA. This provisions language regarding
commit[ment] to agency discretion by law includes, but is not limited
to, situations in which there is no law to apply. In excepting the
Directors termination decisions from review, the APA does not
authorize the Director to act unconstitutionally, but it does preclude
review of his decision.
Notes:

F. Timing
-

(1) A party can obtain judicial review only of final agency actions
unless Congress has authorized review at an earlier stage. (2) A party
may have to exhaust any administrative remedy as a prerequisite
to agency review. (3) A party can obtain judicial review of any agency
action only if that action is ripe for review.

1. Finality: how it applies to nonlegislative rules. Regulations and orders are

final. They are binding and fix peoples legal rights at the moment they
become affected. Nonlegislative rules final?
- downside of letting court review? Not binding, change all the time.
- also an argument in favor? Still shape behavior. Might want to know in
advance if conduct violates policy.
Its not a categorical distinction. It can still be final as a nonlegislative rule.
-

704. Only final agency action is reviewable. If a statute provides for

judicial review, then review proceeds pursuant to the statute (not the
APA). If no specific statutory provision for review exists, the agency
action must be final and no other remedy can exist for a party to
proceed with review under the APA. (704) If the agency decision is not
final, the case will be dismissed for lack of subject matter jurisdiction.

Direct or immediate effect To determine whether an agency

action is final, ask whether the agency has completed its decision
making process and whether the result of that process is one that will
directly affect the parties? Franklin v. Massachusetts (U.S. 1992)

Problem 5-8: Finality of Agency Statements

Taylor-Callahan-Coleman Counties District Adult Probation
Department v. Dole (1991) (Page 506) TC3 case.
Facts: The overtime requirements of the Fair Labor Standards Act
(FLSA) do not apply to any employee employed in a bona fide
executive, administrative, or professional capacity, as these terms are
defined by Department of Labor (DOL) (defendant) regulations. In
1974, the Wage and Hour Administrator (Administrator) issued an
opinion letter advising that certain probation officers were exempt from
the overtime requirements as administrative employees. In 1988, the
DOL issued two additional opinion letters, in which it stated that
probation officers were not exempt as executive, administrative, or
professional employees. The Taylor-Callahan-Coleman Counties District
Adult Probation Department (District) (plaintiff) challenged the two
1988 opinion letters, neither of which was actually addressed to the
District. The District argued that the letters were legislative rules that
had been improperly put into effect without notice and comment and
that they were inconsistent with earlier regulations and the statute.
The district court dismissed the case for lack of subject matter
jurisdiction, and the matter was brought before a federal appellate
court.
o Need a definitive statement. Definitive if signed by high level
agency official.
o National Laundry key to understanding what is definitive.
Issue: Is an advisory letter issued by an agency reviewable in court
when the letter does not constitute a final agency action?
Rule: 704 of the Administrative Procedure Act (APA) limits judicial
review to agency action made reviewable by statute and to final
agency action for which there is no adequate remedy in court.
Holding: No. 704 of the APA limits judicial review to agency action
made reviewable by statute and to final agency action for which there
is no adequate remedy in court. To determine whether an agency
action is final, courts consider: (1) whether the challenged action is a
definitive statement of the agencys position; (2) whether the actions
have the status of laws with penalties for noncompliance; (3) whether
the impact on the plaintiff is direct and immediate; and (4) whether
immediate compliance was expected. Here, advisory opinions by the
Administrator are not final or binding on employers or employees;
instead, they are simply designed to guide the DOL in its operations.

Specifically, the opinion letters at issue are not final agency actions
because they do not set out a definitive statement of DOL policy; they
do not have the status of law with penalties for noncompliance; they
have no direct or immediate impact on the District; and they do not
require the Districts immediate compliance. Accordingly, the letters
are not subject to judicial review.
Reasoning: Additionally, the District is not entitled to declaratory
relief because adequate remedies other than this declaratory judgment
action are available.
Notes:

11/7/16:
-

opinion letter not knowing whether employees would be given

overtime. Found letter that said employees were not exempt from OT
narrow application/scope can be challenged by the person who wrote it
but not able to be challenged by someone.
- If admitting pollution have to show monitoring pollution periodically
Appalachian Power Company v. Environmental Protection Agency
(2000) (Page 510)
Facts: Under Title V of the 1990 amendments to the Clean Air ACT
(CAA), states must submit operating permits and proposed and final
permits related to stationary sources of air pollution to the
Environmental Protection Agency (EPA) (defendant) for approval. If the
EPA objects to the permits within forty-five days, the state may not
issue the permit. In 1992, the EPA promulgated rules implementing the
permit program. These rules mandated that permits contain a
requirement for periodic monitoring. The rules were unclear as to
whether this monitoring requirement trumped existing, non-periodic,
monitoring requirements for certain polluters. To address this point, the
EPA issued a document entitled Periodic Monitoring Guidance for Title
V Operating Permit Programs (Guidance). The Guidance clarified that
permits are to require periodic monitoring even in situations where
the source of pollution was already subject to a different, non-periodic,
monitoring requirement. Electric power companies and trade
associations representing the nations chemical and petroleum industry
(plaintiffs) challenged the validity of portions of the Guidance. Their
petitions were consolidated for review, and the matter came before a
federal court of appeals.
Issue: May an agency document be subject to judicial review as a final
agency action where that document is not a legislative rule?
Rule: For an agency action to be considered final, it must both stand
for the consummation of the agencys decision making process and be

an action by which rights or obligations have been determined or from

which legal consequences will flow.
Holding: Yes. Under the Administrative Procedure Act (APA), judicial
review is limited to agency actions made reviewable by statute and to
final agency actions for which there is no adequate remedy in court.
Two conditions must be met for an agency action to be considered
final: first, the action must stand for the consummation of the agencys
decision making process; and, second, the action must be one by
which rights or obligations have been determined or from which legal
consequences will flow. Boilerplate language in an agency document
stating that the document is intended solely as guidance and does not
represent a final agency action cannot, on its own, establish that the
document is not a final agency action. Here, the Guidance constitutes
a final agency action because it marks the consummation of the EPAs
decision making process regarding periodic monitoring and because
the challenged portion of the document establishes legal
consequences. Accordingly, the Guidance is a final agency action
subject to judicial review. The boilerplate language at the end of the
Guidance identifying the document as not a final agency action does
not mandate a different outcome.
o EPAs guidance document telling the state what it should dois
that final? Does it sound final?
o Yes, it's a policy statement. Even though it can be altered, it is
still a final agency action. It was telling states what they had to
do to be in compliance.
Definitive statement, not based on an isolated case, but
more broadly. Expected to comply with something.
Finality means it can be challenged even before any
sort of binding legal action takes place.
Notes:

2. Exhaustion
- What is the source of this requirement? Source of standing is constitutional
law. Preclusion is 701. Finality is 704. Exhaustion has both a common law
and an APA component.
- Exhaustion can apply outside context of APA.
Exhaustion (in general): requirement that a person or entity pursue remedies
within the agency before going to court.
- Why would courts expect that agencies pursue in agency before going
to court? Keeps less people out of the court, preserving judicial
economy, making the P go through agency remedies first can often
enhance the record available for court to review later on,

Downside to exhaustion? Telling them we are kicking you out of court

because you filed too soon or because you had other opportunity to
pursueadministrative proceedings can take a long time, agency
might be biased and not objective,

Exhaustion (APA): 704

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. A
preliminary, procedural, or intermediate agency action or ruling not directly
reviewable is subject to review on the review of the final agency action.
Except as otherwise expressly required by statute, agency action
otherwise final is final for the 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.
- Statute means you can have congressional override. Congress can
override what is in the APA.
- Sometimes might be inclined to argue in certain circumstances that
agency action is not final for reasons related to
o Application for declaratory order
o Application for Reconsideration OR
o Application for an appeal to Superior Agency Authority unless
Required by rule [the appeal itself is required by rule]
Action meanwhile is inoperative
-

A party must exhaust all administrative remedies. A party could

potentially lose their chance to utilize all administrative remedies due
to the lengthiness of a court case (i.e. miss deadline to file agency
appeal). A person need not appeal to the agency for the agency action
to be considered final, unless there is a statute requiring the appeal.
It allows agencies to correct own mistakes and promotes judicial
efficiency (note: also creates a better record for the court)
Requires plaintiffs to exhaust administrative remedies before seeking
judicial review by the courts. (see McCarthy exception)

McCarthy v. Madigan (1992) (Page 516)

Facts: While a prisoner in a federal penitentiary, John J. McCarthy
(plaintiff) filed a pro se complaint in federal district court seeking
monetary damages against certain prison employees (defendants).
McCarthy brought his suit on the ground that the defendants had
violated his constitutional rights under the Eighth Amendment by
acting with deliberate indifference to his needs and medical condition.
The district court dismissed McCarthys complaint upon finding that he

had failed to exhaust prison administrative remedies as required by the

Federal Bureau of Prisons Administrative Remedy Procedure for
Inmates. McCarthy appealed, and the court of appealed affirmed.
McCarthy then brought the case to the United States Supreme Court.
o Court didn't require P to exhaust prison remedies because P was
challenging the constitutionality of the prison to review his
needs.
Issue: Must a federal prisoner resort to the internal grievance
procedure promulgated by the Federal Bureau of Prisons before
initiating a suit seeking monetary damages against prison officials?
Rule: Under the doctrine of exhaustion of administrative remedies, a
party must exhaust prescribed administrative remedies before seeking
relief from the federal courts.
Holding: No. Under the doctrine of exhaustion of administrative
remedies, a party must exhaust prescribed administrative remedies
before seeking relief from the federal courts. The exhaustion doctrine
both protects administrative agency authority and promotes judicial
efficiency. If Congress specifically requires it, exhaustion is mandatory.
If Congress has not specifically addressed the issue, judicial discretion
applies. Courts must exercise such discretion in a manner that is
consistent with congressional intent and the relevant statutory
scheme. To determine whether exhaustion is required, courts must
balance the interest of the individual in retaining prompt access to a
federal judicial forum against institutional interests favoring
exhaustion. There are three broad sets of circumstances where an
individuals interests heavily weigh against requiring administrative
exhaustion: (1) when requiring resort to administrative remedies may
cause undue prejudice in a subsequent court action; (2) when an
administrative remedy would be inadequate because of some doubt as
to whether the agency has the power to grant effective relief; and (3)
when an administrative remedy would be inadequate because the
administrative body is shown to be biased or has otherwise
predetermined the issue. Here, because Congress has not meaningfully
addressed whether administrative exhaustion is required in this
context, the court must balance McCarthys interests against
institutional interests favoring exhaustion. The Bureau of Prisons
general grievance procedure heavily burdens McCarthys individual
interests to the extent that its short, successive filing deadlines create
a high risk of forfeiture of a claim and because the administrative
remedy does not authorize the monetary damages that McCarthy
seeks.
o Although the Bureau of Prisons has an interest in encouraging
internal resolution of grievances against it and preventing the
undermining of its authority through unnecessary resort to the
federal courts, other institutional concerns related to exhaustion

do not significantly weigh in favor of requiring exhaustion.

Specifically, the Bureaus alleged failure to render medical care is
only tangentially related to its authority to control and manage
federal prisons and the Bureau does not have any particular
expertise in the issues at stake in McCarthys case. Accordingly,
McCarthy need not have exhausted administrative remedies
before bringing his constitutional claim for money damages to
court.
Concurrence: It is improper to impose an exhaustion requirement in
cases where, as here, the agencys grievance procedure does not
provide for the relief that the plaintiff seeks.

Darby v. Cisneros (1993) (Page 519) dramatically changed the

exhaustion doctrine.
Facts: The Department of Housing and Urban Development (HUD)
provides mortgage insurance as a means of facilitating the
construction of housing in poor areas. Mr. Darby (plaintiff) obtained
such insurance on several occasions. HUD officials determined that
Darby had violated the eligibility regulations for this financing, and
notified him that it proposed to bar him from future participation in
HUD procurement contracts. Darby sought a hearing, and the
administrative law judge (ALJ) imposed an eighteen-month disbarment.
Under HUD regulations, a hearing officers determination is final unless
a party requests review and, within 30 days of receiving the request,
the Secretary of Housing and Urban Development (Secretary)
(defendant) decides to review the determination. Neither Darby nor
HUD sought administrative review of the ALJs decision. Darby filed a
suit in federal district court, seeking a declaration that the imposition
of the penalty was not in accordance with law, as required by the
Administrative Procedure Act (APA). HUD moved to dismiss on the
ground that Darby failed to exhaust his administrative remedies. The
court denied HUDs motion, but the court of appeals reversed. The
United States Supreme Court granted certiorari.
o Its an optional appeal and one not required for finality purposes.
Issue: Do federal courts have the authority to require that plaintiffs
exhaust available administrative remedies before seeking judicial
review under the APA, if neither the governing statute nor agency rules
specifically require that exhaustion is a prerequisite to judicial review?
Rule: In cases governed by the APA, federal courts do not have the
authority to require a plaintiff to exhaust available administrative
remedies before seeking judicial review, unless the relevant statute or
agency rule specifically mandates exhaustion as a prerequisite to
judicial review.
Holding: No. Under 704 of the APA, judicial review is available for a
final agency action for which there is no other adequate remedy in

court and preliminary, procedural, or intermediate agency action is

subject to review on the review of the final agency action. 704 goes
on to provide conditions under which agency action becomes final for
the purposes of judicial review. In providing such conditions, this
portion of the APA limits the authority of courts to impose additional
exhaustion requirements as a prerequisite to judicial review. In cases
governed by the APA, the doctrine of administrative remedies is limited
to those situations clearly mandated by relevant statutes or agency
rules. The exhaustion doctrine continues to apply as a matter of
judicial discretion in cases not governed by the APA. Here, the
governing statute and agency rules do not require that Darby pursue
further agency appeals. Accordingly, the court of appeals decision is
reversed and the case remanded.
Problem 5-9: Exhaustion of Administrative Remedies
- problem of exhaustion: defending an agency action by Richard crane
challenging a Department of Ed action. DOE terminated his federal student
loan program.
- regulatory basis for funding withdrawal higher ed act of 1965
- procedure or mechanism that agency is using auditing his driving schools
and did an emergency withdrawal
- termination notification
- if wanted to withhold funding use 688.83
- Crane could request a hearing and have a hearing on whether he should be
permanently barred from receiving federal funds and 688.90 is appeal from
decision made under 688.86
- 2nd element? If crane were to appeal his termination of funding, does that
termination continue while he appeals it within the agency? Does not take
effect while the appeal is pending- (I think this is what was said)
Problem 5-10 (532)
- Is it costly to comply with the compliance order?
- Is this like Abbott labs that involves legal issues?
formalism: downside is that it isnt flexible, it cant reconcile the
administrative state.
Functionalism:
3. Ripeness
-

Judicial review is only permitted if that action is ripe (meaning that it is

the correct time to hear the case). It is not an APA requirement it is a
common law jurisdictional question and applies to all federal court
cases.
Therefore, it applies to all cases. It looks to the proper time for a
court to review the agency action. Abbott Labs is the leading case on

ripeness (Note: Generally, rules that require immediate enforcement

w/threat of fines or penalties will be ripe under Abbott Labs. However,
Conditional legislative rules will not be ripe in a pre-enforcement
context under Toilet goods.)
The big Pre-Enforcement Review case
Abbott Laboratories v. Gardner (1967) (Page 527)
Facts: In 1962, Congress amended the Federal Food, Drug, and
Cosmetic Act to require prescription drug manufacturers to print the
common or established name of their drugs in large letters along
with the proprietary or trade name of the drug on all packaging.
Abbott Laboratories and thirty-seven other prescription drug
manufacturers (plaintiffs) brought suit against Gardner (defendant),
the federal Commissioner responsible for enforcing the new act,
alleging that the Commissioner exceeded his authority in making such
a regulation. Abbott successfully sought injunctive and declaratory
relief in district court, but the court of appeals reversed. The United
States Supreme Court granted certiorari.
o FDA imposes fines that are calculated on a daily basis. Strategy
of come get then Ill have the right to seek judicial review
compounds the cost to drug manufacturers.
o In a sense it is a hypothetical injury because they havent been
subject to enforcement yet. Court agreed with that and said case
was one ripe for review
o 2 requirements that apply to pre-enforcement review situations:
o Ripeness controversial is tendency of EPA to do a compliance
order. Problem 5-2 on page 532.
o 1. Fitness
One fit for judicial review now as opposed to in the future.
Is there something that is going to happen in the
enforcement process that is going to give us
compelling persuasive comments in the record that
agency didn't look at when they aid all drug
manufacturers had to change their labels.
Purely legal question not affected by agencys
thought process as it goes through an enforcement
process.
Mixed questions of fact and law might be a different
story. Should wait for enforcement to see if it is fit for
review.
Enforcement doesn't change how arguments are
going to be presented or decided.
Both compliance and noncompliance were costly in
the Abbott case for the drug manufacturers.
o 2. Hardship

Would parties suffer hardship I the court withheld review?

Would judicial intervention inappropriately interfere with
future agency action?
Issue: (1) Is the controversy surrounding the constitutionality of the
prescription drug regulations ripe for judicial adjudication? (2) Is a
judicial review of an agency action available when the statute
governing the agency action does not expressly provide for such
review?
Rule: (1) In determining whether a case or controversy is ripe for
adjudication, a court must evaluate the fitness of the issues for judicial
decision and the hardship to the parties of withholding court
consideration. (2) Judicial review of a final agency action by an
aggrieved person will not be cut off unless Congress clearly intended to
prevent such review.
Holding: (1) Yes. In determining whether a case or controversy is ripe
for adjudication, a court must evaluate the fitness of the issues for
judicial decision and the hardship to the parties of withholding court
consideration. Both prongs of the new ripeness test are satisfied in this
case. Firstly, no questions of fact remain to be decided in the case and
all judicial issues are pure questions of law, thus fit to be adjudicated.
Secondly, the parties will suffer immediate and severe harm if
consideration is withheld. Without a ruling on this issue, Abbot is forced
either to undergo a very costly and wasteful rebranding of its products,
or, in the alternative, risk severe civil and criminal penalties from
statutory noncompliance. Failure to decide the issues in this case
severely impacts Abbott, hence, the case is ripe for adjudication. The
judgment of the court of appeals is reversed and remanded for further
adjudication.
(2) Yes. Judicial review of a final agency action by an aggrieved person
will not be cut off unless Congress clearly intended to prevent such
review. Under the Administrative Procedure Act, final review of an
agency action is available when authorized by statute or when there is
no other adequate remedy in court. The existence of a specific
procedure for reviewing certain regulations other than those at issue
here does not necessarily mean that Congress intended to bar other
acts from judicial review. Here, no statutory authority in the food and
drug area specifically excludes pre-enforcement review. Additionally,
the legislative history supports the conclusion that the specific review
provisions contained in the statute were designed to give additional
remedies, not to limit or eliminate other forms of review. Accordingly,
nothing in the FDCA itself precludes the plaintiffs action.
Dissent: This decision prematurely intervenes in an administrative
process. Established jurisprudence suggests that courts should only
adjudicate legal issues after administrative processes and agency

procedures have been exhausted. The case is not ripe for judicial
adjudication and the court of appeals should be affirmed.
o The Court should not interfere with the Commissioners decision
because Gardner acted appropriately to regulate what was seen
as an extortionist pharmaceutical industry. The lack of clear
packaging labels deceives customers into paying significantly
more for prescription drugs than they would otherwise. Thus, it is
inappropriate to grant permission to petitioners to challenge the
Commissioners regulations.
Notes: