Admin 10- Exhaustion,

In applying the exhaustion doctrine think about

- the impact on the process if the court allowed this to occur - is the issue fact sensitive? If so, it may require the expertise of the agency

m. Friends v. Laidlaw: Citizens suit under CWA i. Congress allows civil actions by victims of pollution to enforce compliance with the CWA- plaintiffs might seek injunction or fine ii. Defendant's past violations of CWA raised public anxiety about future performance in a way that would reduce their property values if that anxiety were not remedied because he had repeatedly violated this.

1. A good remedy would be an order that would have a deterrent effect against future misbehavior by Laidlaw a. Fines (even for past misconduct) have a deterrent effect b. So redressability works here! 2. Distinguished Steel Co. case because here they alleged continuous abuses.

Exceptions to this general rule

1. A plaintiff will not ordinarily be required to exhaust clearly futile agency process cases, challenging through agency process the very legality of the process itself 2. When an agency unjustifiably conceals the grounds on which a claimant could have sought relief, the claimant will not later be penalized for failing to have pursued an administrative remedy. Bowen v. City of New York.

Associations are allowed to sue on behalf of members if

1. At least one member who would have suffered an injury sufficient to sustain standing if that member had been the suing party 2. Purpose of suit must relate to purpose of organization 3. No procedural need for those actually injured to be parties to the litigation- typically, that means the suit is not for individualized damages

j. Lujan v. Defenders of Wildlife: ESA requires agencies to consult with Dol to make sure proposed projects do not jeopardize endangered species Dol interprets ESA to exclude US-funded projects on foreign soil iii. Alleged injury = increased rates of extinction of endangered species in Egypt and Sri Lanka that members of the NWF would like to observe in their habitat

1. The kind of injury asserted is of the type that the court would decide on, but here it is just too speculative 2. With regard to this injury the P's assertions about the future are simply too general to concretize their claim

iv. Darby v. Cisneros (1993): Mortgage banker sought to enable multifamily developers to obtain single-family mortgage insurance from HUD by using "straw purchase" who would apply for mortgages and then sell to developers. Although HUD had previously audited Garvin's plan and concluded there was no wrongdoing, upon default, HUD prohibited Darby and Garvin from participating in any South Carolina program for one year. After ALJ decision, Darby and Garvin appealed directly to the district court instead of seeking further administrative review. 1. Must a litigant seeking judicial review of a final agency action under the APA exhaust all available administrative remedies?

2. No: doesn't need to unless such exhaustion is specifically required by statute or agency rule. Under APA §10(a) grants individuals who are adversely affected by an administrative agency's action the general right to seek judicial review.

h. ADPSO v. Camp (US 1970): Competitive Injury: the comptroller of the currency allowed national banks to perform data processing services. This injured persons in the data processing business. Could they sue?

ADAPSO's interest = protection against unfair competition from banks. Yes, they fell under the statute's zone of interest

Ripeness

Agency's order or action is technically final, but the court remains concerned that considerations of comity (respecting the jurisdiction of another) nevertheless counsel delay

Requirements of Injury in Fact:

Concrete and Particularized; economic or noneconomic

Congress does/doesn't have the power to expand the class of persons with standing to challenge agency actions

Congress has the power to expand the class of persons with standing to challenge agency actions

f. Lions v. LA: D sued police for use of excessive force.

Court held that he could sue for damages but couldn't ask for an injunction against future use of force unless he could show he was likely to be subject to the use of excessive force in the future. This makes it likely that no one would be able to sue for an injunction against excessive force.

USE COMMERCIAL OUTLINE TO HELP DEFINE ZONE OF INTEREST

OKAY

Finality

Tends to be emphasized where a court is concentrating on a specific judicial review provision or on the final order language of the APA

3. two prong test under APA (nonstatutory review):

a. Must exhaust all administrative remedies mandated by statute or agency rule. b. Must be final agency action.

Exhaustion under statutory review (doesn't fall under the APA; eg informal adjudication): Balancing test judicial discretion:

a. Would there have been a record if there had been exhaustion? b. Would it hurt the agency to require exhaustion or fail to require exhaustion? c. Unless the statute specifically requires exhaustion, where the court will take a hands off approach

Causality

defendant's action must be causally related to the asserted injury to plaintiff

iii. Many subsequent cases strongly suggest that Congress can transform generalized grievances into particularized injuries by

explicit statutory creation of a cause of action.

v. Creates anomalous distinction between of cases of statutory and nonstatutory review- courts have more leeway to impose exhaustion requirements under statutes that

expressly provide judicial review.

Redressability

getting the relief sought would actually remedy the injury asserted

Prospective exhaustion: 3 factors to consider

i. Burden imposed by the available administrative process ii. Appropriateness of the agency proceeding for resolving the issue raised iii. Dependence of the legal issue on the development of a factual record

i. Barlow v. Collins: Economic Injury: tenant farmers challenged a regulation that permitted them to assign federal benefits as security for leases. They claim the regulation injured them because their landlords would now always demand such an assignment before leasing the land.

ii. Z of I test held to be satisfied 1. Not clear if this test refers to the particular category of claimant or the particular interests of statutory beneficiaries. 2. Act intended to protect tenant farmers? 3. Act intended of prevent exploitation of renters? a. Are these consistent:

How can you avoid the exhaustion requirement?

iii. Litigants have successfully avoided the exhaustion requirement where they challenged the propriety or adequacy of the administrative procedures required for exhaustion. Matthews v. Eldridge Court will usually wish to be assured that administrative remedies have been pursued far enough to allow the agency to decide whether there is a non-constitutional basis for resolving the dispute.

What are the three basic requirements for standing

injury, causality, and redressability

Why are taxpayer grievances avoided

primary reason is avoiding lawsuits that amount to essentially political grievances, which could be addressed through political processes. So issues of redressability and generalized grievances! Need logical nexus between plaintiff's status and the claimed failure of congress.

What are the prudential limitations of standing

prohibition on third party standing, prohibition on generalized grievances, zone of interests test

g. Allen v. Wright: Failure of IRS to take sufficient care in awarding charitable status to racially discriminatory private schools meant i. Racially discriminatory private schools were able (despite the law) to lure contributors by offering tax deductibility for their contributions 1. Tuition at these schools was consequently lower because costs of operation were offset by contributions a. White parents who would have sent their kids to racially integrated public schools were enticed to these private schools by unjustifiable low tuition rates Claim: stigmatic injury

too generalized for standing iii. Reduced opportunities for minority children to have the experience of integrated education in public schools; this would be good enough to be a particularized injury but the court said that it was too speculative

Do both prudential and constitutional standing need to be reached to have standing

yes

iii. Under the APA, in order to sue one must be within the

zone of interest in the statute; so the zone of interest test comes not from the constitution, but from the APA iv. Under 702, the right to sue is limited to people "aggrieved" within the meaning of the statute they invoke- "interest asserted by the plaintiffs is arguable within the zone of interests to be protected or regulated by the statute in question"

Associational standing

i. Plaintiff must be injured by the denial of a third party's rights ii. There must be some obstacle to the third party's independent assertion of rights iii. The plaintiff must be an appropriate representative of the third party's interests.

qui tam suits

i. Private law suits to enjoin legal compliance by private defendants' if the plaintiff wins, it shares in the bounty (False claims act) ii. Differ from citizen suits 1. Plaintiff need not show any injury to itself 2. Qui tam plaintiff has an interest in the damages award, which a citizen suit plaintiff does not

Important questions regarding exhaustion

1. How pressing the plaintiff's need for judicial review? 2. How appropriate are the issues presented for judicial resolution? 3. What effect will review likely have on the agency's accomplishment of Congress' purposes?

Prospective Exhaustion

1. Prospective: judicial review is postponed on the ground that the complainant still has available some process within the agency that might yet resolve matters in the complainant's favor. The plaintiff is required to "exhaust" this process prior to judicial review a. Cases of prospective exhaustion again illustrate, like the finality and ripeness cases, a desire to avoid premature (and perhaps unnecessary) court intervention

Two part test for zone of interest

1. The interests protected by the statute must be discerned 2. Then must see if the plaintiff's interests are among these statutory interests.

Retrospective Exhaustion

2. Retrospective: the agency contends that the plaintiff unjustifiable bypassed administrative channels for resolving his or her claim. If the court agrees, it will dismiss the case on the ground that, even though no avenue for administrative relief remains open, the plaintiff inexcusably failed to exhaust administrative remedies

v. Theory of Procedural Injury 1. Congress permits citizen suits to challenge any violation of the Act 2. The Act requires certain procedures to be followed by agencies 3. Why doesn't congress's determination to enable any citizen to enforce the ESA lead to the conclusion that Congress regards the failure to follow statutory procedures as itself a kind of injury remediable in court?

4. Scalia: To allow this argument would be to entertain the kind of "generalized grievance" that goes beyond the cases and controversies Article III contemplates

Exhaustion

Lack of finality can be said to be the result of the claimant's failure to pursue available administrative remedies, or action has become final only because the claimant by passed available agency processes for review

r. FEC v. Akins (US 1998): Non-economic: deprivation of information Voters appealed a finding by the FEC that the AIPAC is not a "political committee" for purposes of disclosure as required by the FECA.

i. Voters are given standing to challenge the FEC's determination that AIPAC is not a "political committee" within the meaning of FECA ii. What injury gave rise to standing??- informational injury. 1. Parties feel that their choices as voters would be more informed if they knew who AIPAC was supporting iii. Injury was within a range of interests protected by the applicable legislative statute. Constitutional standing in the form of injury in fact exists where the asserted harm is shared in equal measure by a large or widespread class of citizens.

o. Sierra Club v. Morton (US 1972): Environmental groups can challenge gov't decisions allegedly harmful to the environment, but ONLY IF: i. Non-economic injury: Mere interest in a problem does not in itself render an organization "adversely affected" or "aggrieved" within the meaning of the APA. Injury-in-fact test requires more than injury to a cognizable interest. 1. But makes no distinction between injury to non-economic and economic interests! Can be aesthetic or recreational Exception to the third party standing rule

ii. Exception to the prudential bar against third party standing! The gov't action has caused or threatens injury in fact that is personal to at least one association member. Somebody involved in the case has to be an individual who has suffered the injury being alleged.

o. MA v. EPA: i. A group of states, local governments, and private organizations, alleged in a petition for certiorari that the EPA has abdicated its responsibility under the CAA to regulate the emissions of four greenhouse gases, including carbon dioxide 1. Does EPA have the statutory authority to regulate greenhouse gas emissions from new motor vehicles- ISSUE OF LEGAL INTERPRETATION 2. If so, whether its stated reasons for refusing to do so are consistent with the statute- ARBITRARY AND CAPRICIOUS REVIEW ii. 19 private orgs filed a rulemaking petition asking EPA to regulate greenhouse gas emissions from new motor vehicles under §202 of the CAA 1. EPA responded by saying they don't have the authority to do this, and if they did, they don't think it is advisable at this time

iii. Causality 1. Congress under CAA allows any citizen to sue EPA to challenge agency action unlawfully withheld under CAA 2. Petitioner still has to show injury 3. But, bc congress allowed citizens to petition for rules and to challenge actions unlawfully withheld. Congress must think - ASSUMING CONGRESS HAS SOME INJURY IN MIND- that (a) there is a causal link between the procedures it provides and the injury it has identified and (b) giving people their procedural rights will help prevent the asserted injuries 4. Where congress has made the logical connections the court can defer to its understanding and not subject the petitioners to "remedial hypothesis" to any closer scrutiny 1. Framework= Chevron 2. The statutory text forecloses EPA's reading; so EPA does have the authority to do this 3. Scalia: sees this as a Chevron step 2 question and then finds that EPA was ok in their finding

e. Steel Company v. Citizens for a Better Environment: EPCRA- anyone may bring a cause of action against the owner of a facility that failed to meet its EPA reporting requirements i. Plaintiff has to give 60 days notice to EPA. If EPA takes action, suit is barred ii. Defendant complies with the law late- plaintiff sues to remedy past violations. Standing?

iii. Majority: No standing because none of the relief addresses an actual injury to the plaintiffs iv. It would seem that Congress cannot create standing on behalf of plaintiffs to sue when the only remedy is a fine that goes to the treasury not the plaintiffs (past harms); court costs don't count for standing purposes.