Chapter 9

Standing

- Requirement that a person who brings a lawsuit has a personal interest in the case. - Zone of interests to be protected or regulated by the statute or constitutional guarantee in question." - APA grants standing to a person "aggrieved by agency action within the meaning of a relevant statute."

Heckler v. Chaney (Agency Discretion)

1. Facts: Prison inmates subject to the death penalty brought suit against the FDA challenging the use if certain drugs for lethal injections. 2. Is the agency's refusal to take action reviewable? Can the court rule on a claim of abuse of discretion under these circumstances? 3. No as to both issues. For an agency's action to be reviewable there must be a standard in place to measure the agency's discretion against. In this case the statute creates no such standard

Lincoln v. Virgil

1. The Indian Health Service provides health care for approximately American Indian and Alaska Native people. Program was re-evaluated and the determination was made to discontinue the clinical services to children in the Southwest. Suit was brought by eligible children who were challenging the decision to close the centers. 2.. Issue: Is the Service's determination to close the program reviewable under the APA 3. iii. Decision: No. The allocations of funds from a lump sum appropriation are administrative decisions traditionally regarded as committed to agency discretion.

Equitable Estoppel

Doctrine that prevents a party from asserting a particular defense or raising a particular issue because it is unfair to allow the party to do so. Read 297-299

Collateral Estoppel

Doctrine that prevents relitigation of an issue that was decided in a prior case. Collateral estoppel bars relitigation of issues that are part of claims, whereas res judicata bars entire claims.

City of Arlington v. FCC

FACTS: Wireless phone service providers must obtain zoning approvals from state and local governments before building wireless towers or attaching wireless equipment to buildings. In the Telecommunication Act of 1996, congress required local governments to respond to zoning requests within a reasonable period of time. Despite this law, the zoning approval process still dragged on and severely delayed construction. In 2008, the Wireless Association petitioned the Federal Communications Commission ("FCC") to bring an end to these unreasonable delays. The Association recommended placing time limits on how long these zoning requests could take. The FCC agreed and in November 2009 set the following "reasonable time" limits for zoning requests: 90 days for attachments to current buildings and a 150 days for new structures. The local governments claimed that the FCC cannot set these limits because the FCC cannot determine its own power under the Communications Act. Under the long-standing Chevron doctrine of interpretation, courts should always defer to an agency's interpretation of a particular act. However, the Supreme Court had never determined whether this applies to situations where the agency defines its own power under a particular law. ISSUE Should a court apply the Chevron doctrine and defer to an agency's interpretation of its jurisdiction under a particular law when that interpretation is called into question? When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions." First, applying the ordinary tools of statutory construction, the court must determine "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id., at 842-843. But "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. . . . FINDING: Yes. Justice Antonin Scalia, writing for a 5-4 majority, held that courts must apply the Chevron doctrine and defer to an agency's interpretation of its jurisdiction when that jurisdiction is called into question. The Chevron doctrine is supported Congressional intent that an agency should determine its jurisdiction when there is ambiguity in a statute. The Court held that there was no significant difference between "run-of-the-mill" ambiguity and important, "jurisdictional" ambiguity. The test should look at whether the statute's language prevents the agency's assertion of authority. If the agency's assertion is based on a permissible interpretation of the statute, then the courts must defer to the agency. Justice Stephen G. Breyer concurred in the opinion. Although he agreed that courts should not get involved where Congress has deferred to an agency's judgment, he argued that the mere existence of ambiguity should not be considered conclusive evidence of Congress' intent to defer to that agency. Where Congressional intent is not clear, the courts should be permitted to interpret the statute accordingly. Chief Justice John Roberts dissented and argued that a court should not defer to an agency until that court decides, on its own, that the agency is entitled to deference. However, once a court has made such a determination, Chevron deference may be warranted. Justice Anthony M. Kennedy and Justice Samuel A. Alito, Jr. joined in the dissent.

Siera Club v. Morton

FACTS: The Mineral King Valley was an undeveloped part of the Sequoia National Forest that was mostly used for mining until the 1920s. In the late 1940s, developers began to make bids on the land for recreational developments. Walt Disney Enterprises won a bid to start surveying the valley in the hopes of developing an 80-acre ski resort. The size of the proposed resort would require the construction of a new highway and massive high voltage power lines that would run through the Sequoia National Forest. The Sierra Club kept track of this project for years and hoped to stop it to protect the undeveloped land. The Sierra Club filed preliminary and permanent injunctions against federal officials to prevent them from granting permits for the development of the Mineral King Valley. The district court granted these injunctions. The U.S. Court of Appeals for the Ninth Circuit overturned the injunctions on the grounds that the Sierra Club did not show that it would be directly affected by the actions of the defendants and therefore did not have standing to sue under the Administrative Procedure Act. Alternatively, the appellate court also held that the Sierra Club had not made an adequate showing of irreparable injury or likelihood of their success on the merits of the case. QUESTION: Did the Sierra Club adequately establish that it had a sufficient stake in the development of the Mineral King Valley to establish standing for a suit under the Administrative Procedure Act? FINDING: The Sierra Club did not have standing to sue under the Administrative Procedure Act (APA) because it failed to show that any of its members had suffered or would suffer injury as a result of the defendants' actions. Justice Potter Stewart wrote the opinion for the 4-3 majority, in which the Court held that, in order to have standing to sue under the APA, the plaintiffs must demonstrate they had directly suffered an injury as a result of the actions that led to the suit. Although building roads and high voltage power lines through the wilderness upsets the beauty of the area and the enjoyment of some, such "general interest" in a potential problem is not sufficient to establish that a plaintiff has been injured in the manner that standing doctrine requires.

Right to challenge law or agency action?

Merely being a citizen doesn't confer right to challenge, there must be an accompanying harm to confer standing.

What is standing?

The Constitution limits federal jurisdiction to "cases or controversies"

In City of Arlington v. FCC - What does the argument against deference rest on?

The premise that there exist two distinct classes of agency interpretations: Some interpretations—the big, important ones, presumably—define the agency's "jurisdiction." Others—humdrum, run-of-the-mill stuff—are simply applications of jurisdiction the agency plainly has. That premise is false, because the distinction between "jurisdictional" and "nonjurisdictional" interpretations is a mirage. No matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority. . .

Consumer (Standing)

consumers may have the right to participate at the agency level as interested parties and may have standing to seek judicial review of agency actions. If the price a consumer pays is affected by an agency action, the consumer has adequate interest to obtain judicial review. A consumer may also have standing to challenge agency orders that affect the public interest in other ways, such as reducing the quality of a product. Generally, the fact that an administrative agency is charged with protecting the consumer's interest does not mean that consumers are precluded from bringing consumer lawsuits.

what happens where a statute is silent as to who may petition for review, standing principles apply

o The standing doctrine requires that the person bringing the suit have a personal interest in the case - - A legally protected interest ---A right being violated

Can theoretical and hypothetical disputes may not be heard ?

o Ultimately it means, the courts only want to hear live actual disputes Cannot hear hypothetical disputes. Adversarial system. Both sides present best evidence. o In courts, litigants must have standing o Must have suffered (or be about to suffer) an injury to a legally protected right. o Injury must be directly traceable to the government action o Must not be hypothetical o Must be likely that a judicial decision can provide redress.

What is the new standing test under Association of Data Processing Organizations v. Camp

test that looks at three criteria: o The plaintiff must suffer an injury in fact o The interests asserted must be within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question o It must be likely that the injury will be resolved favorably

What may congress set for review?

• Congress may set the location for review • Both time and location requirements must meet due process or will fail

What are sources of review authority?

• Most review authority comes from statutes • Other authority comes from the Constitution and the common law

2) What is substantial evidence?

"Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . . Mere uncorroborated hearsay or rumor does not constitute substantial evidence."

Which criteria may Congress establish regarding constitutional issues?

- Time - Location - Manner

What are two standing cases?

1) Association of Data Processing Organizations v. Camp 2) Clapper v. Amnesty International

In Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), the Court set out a two-step process for the interpretation of regulatory statutes:

1) First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. 2) If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Finally, if a reviewing court determines that Congress has explicitly delegated the authority to develop policy, the agency's policy decisions are reviewed under the arbitrary and capricious standard. ** Although the court indicated arbitrary and capricious standard would apply for informal action, the author assumes the substantial evidence standard would apply for formal action.

What is a Final Agency Action?

A judicially reviewable agency action?

6) Mixed Questions of Law and Fact

A question will appear to be one of both fact and law. So-called mixed questions are those that involve the direct application of an interpreted law to a fact issue. There is no uniform rule on what standard of review applies to mixed questions. In some cases, courts review these decisions de novo and in others courts apply the substantial evidence test. The more factual, the more likely it is that the substantial evidence test will be applied.

Taxpaper standing limitation

A taxpayer has standing to sue only when he or she challenges an expenditure that violates a constitutional limitation on that power.

Competitor (Standing)

APA does not limit participation in agency proceedings to obvious parties —the test is whether one is an interested party. Under this test, competitors are sometimes permitted to participate in agency proceedings.

8) Failure to Raise Issues

As general rule, eview is limited to those issues raised at the administrative level. Failure to raise an issue or assert a position at the administrative level bars the party from raising the issue on appeal.

Constitutional (standing)

Bond v. United States23 a 2011 Supreme Court case that involved a jealous and vengeful wife. Bond, the wife, learned that one of her good friends was having an affair with, and became impregnated by, her husband. Bond threatened her husband's lover, stole her mail, and attempted to poison her. Bond was charged with violating federal postal laws and an international treaty that governed the use of chemicals. She challenged the application of the treaty to her as violating the Tenth Amendment. Bond asserted that the treaty regulated a general police power, the crime of injuring another person, and that such powers are reserved to the states under the Tenth Amendment. The federal government responded by asserting that she lacked standing to raise the federalism question, in addition to asserting the legitimacy of the prosecution under the treaty. In a unanimous decision, the Court held that Bond had standing to raise the Tenth Amendment issue. On remand the lower courts determined that the treaty's provisions could be used to prosecute her without violating the Tenth Amendment. She appealed again, the Supreme Court granted certiorari, and the case was pending when this book went to press. .

Laches

Common Law doctrine that prohibits a party from raising a right or claim when the party's delay in asserting the right or claim has prejudices an adverse party.

Certiorari

Common law writ issued by a superior tribunal to an inferior tribunal requiring the inferior tribunal to produce a record or file so that review may be conducted. o In federal courts, replaced with Injunction and declaratory judgment.

Statutory (Standing)

Congress has some discretion to create rights that will confer standing.

What time limits for review?

Congress may require: o 60 and 90 days are common o 30 day limitation has been upheld in one instance o Courts will strictly enforce Congressional time limits • Untimely suits are almost always dismissed

what are statutory reviews of authority?

Congressional discretion establishes: • That if a statute provides for review, no other method may be used • Congress may establish when the review must be sought and • Congress may set limits on the judiciary's authority in reviewing agency action. • If statute provides for no review, no other method may be considered, unless constitutional issue.

5) Issues of Facts - What are the three standards of review of factual issues?

De novo; substantial evidence; and arbitrary, capricious, abuse of discretion. These three standards are recognized by the APA. De novo is applied only when required by law, which is rare. The substantial evidence test is used to review the factual findings of agencies in formal rulemaking and formal adjudication.

Flast v. Cohen

Exception to the general rule of standing for citizens. Facts: Flast- challenged a state that provided financing for reading, arithmetic and nonreligious courses in religious school. The plaintiff brought action alleging that the expenditure violated the the Establishment Clause of the 1st amendment. Held: Court Court held that taxpayers may have standing if a nexus between the taxpayers' status and the expenditure can be shown and it can be shown that the statute exceeds a constitutional limitation. Court found that the expenditure was significant, that the plaintiff was in the group of taxpayers whose funds were being expended, and that the First Amendment was clearly implicated

What are factors in determining when case is Ripe?

First, are the issues fit for review? Legal issues are more suitable for immediate review than are factual issues. Second, have any administrative remedies been exhausted? The more remedies exhausted, the greater the likelihood that a court will find a case to be ripe. The third factor weighs the harm that will result if preenforcement review is not allowed. The greater the harm, the more likely it is that a court will permit preenforcement review .

3) Abuse of Discretion Standard

For discretionary actions not "committed to agency discretion," judicial review is available under the ARBITRARY, CAPRICIOUS, ABUSE OF DISCRETION STANDARD The standard is the Deferential standard under which agency actions are presumed valid and are affirmed if supported by any rational basis.

Valley Force Christian College v. American for Separation of Church and State, inc.

Issue: involved a delegation of authority from Congress to the Secretary of Health, Education, and Welfare (now the Secretary of Education). he secretary was authorized to convey surplus property to schools for educational use. The statute further authorized the secretary to discount the price of properties granted. The secretary conveyed surplus property to the Valley Forge Christian College and discounted the price 100 percent. Held: The Court found the grant valid because the grant was not made under Congress's taxing and spending power but under the Property Clause of Article IV of the Constitution. In addition, the Court held that because the decision to award the grant was made by an administrative agency, rather than Congress, the taxpayer lacked standing. Said another way, a taxpayer has standing only to challenge the actual body responsible for levying a tax or authorizing the expenditure of tax revenues, not the administrative agency or official responsible for collecting the tax or administering the expenditure.

How may Congress preclude review?

It may set the location for review both time and location requirements must meet due process or will fail. If location or time limit precludes review, the statute must fail under due process analysis.

Qui Tam

Lawsuit brought by a citizen against one who has defrauded the government. The citizen who brings a qui tam action is entitled to keep a portion of the proceeds of the lawsuit.

Does • Traditionally, financial and personal injury issues alone create standing

No

Lujan v. Defenders of Wildlife

Lujan centered around the Endangered Species Act (ESA), a federal statute intended to protect animal species from extinction. The ESA provided that agencies were not to take actions that were likely to jeopardize the continued existence of an endangered species. The Supreme Court held that the plaintiffs did not have standing. The plaintiff wildlife preservation organizations relied on the affidavits of two members to establish standing; in those affidavits, the members asserted that they had been abroad and intended at some unknown date to return, and that they had an interest in observing endangered species on their return abroad. The Court found this interest inadequate to confer standing. The Court reiterated the principles set out in Sierra Club v. Morton—that is, an organization can maintain an action as long as at least one member of that organization satisfies the requisites of standing. An intent to return to a foreign land at some unplanned and unknown date is too conjectural and hypothetical. It would have been easy to satisfy the standing requirements in Lujan. Had a member been a scientist who studied specific endangered species, there would have been standing. Justice Kennedy, in a concurring opinion, asserted that if the members had obtained airline tickets and made plans to visit one of the areas in dispute, there would also have been standing. Lujan holds that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. Hall, Dr. Daniel E. Administrative Law, 6th Edition. Pearson, 20140219. VitalBook file.Lujan reaffirms prior cases. At least one member of an environmental organization must have a concrete interest in the outcome of a case to satisfy the case and controversy requirement of Article III.

Scope and Standards of Review

Once it is determined that review is proper, the next question must be asked: What is the scope of review? In other words, how far will a court delve into the agency's fact findings, conclusions of law, and analyses? 1) De Novo 2) Substantial Evidence 3) Arbitrary, Capricious and Abuse of Discretion 4) Issues of Law 5) Issues of Fact 6) Mixed-Questions of Law and FAct 7) Issue of Discretion 8) Failure to Raise Issues 9)Alternative Rationale

De Novo Standard

Standard of review that allows the reviewing court to judge a case anew with no deference accorded to the agency's factual findings.

Duke Power Co. V. Carolina Environmental Study Group

The Court held that the residents of a community where a nuclear power plant was planned to be constructed could possibly show sufficient environmental injury to confer standing to challenge the law authorizing the construction. Reaffirmed the principle that potential environmental injury may confer standing,

Webster v. Doe

The agency terminated Doe because it found that his homosexuality threatened national security. Doe sued in federal court, alleging that his termination was arbitrary in violation of the APA and also a violation of his constitutionally protected right to privacy. Finding in favor of the CIA, the Supreme Court stressed that deference to executive decisions in matters of national security is particularly important. The Court also found that the language of the act, delegating the power to terminate employees to the director, provides no basis on which a court could review the decision; thus, the act "strongly suggests that its implementation was 'committed to agency discretion by law.'" In Webster v. Doe the Court found for the agency for two reasons: the case involved national security, and Congress had not provided any standards to guide the agency official's exercise of discretion. The latter point was the subject of discussion in Lincoln v. Vigil.

Exhaustion of Administrative Remedies

The doctrine of exhaustion of administrative remedies is concerned with the timing of a review petition. The exhaustion doctrine provides that all administrative remedies must be pursued and exhausted (completed) before judicial review is available. The administrative process must be given a full and complete opportunity to correct its own errors before judicial intervention occurs.

What happens where statute narrowly limits the group eligible to seek review?

The statute applies?

Why is exhaustion of administrative remedies required?

There are a number of reasons why exhaustion of remedies is required. First, exhaustion allows agencies to correct their own mistakes and thereby learn from their errors. Second, it preserves agency autonomy and independence by preventing premature judicial intervention into agency affairs. Third, it promotes judicial economy by allowing a complete record to be made. Fourth, it promotes judicial economy by allowing the agency, rather than the reviewing court, to make findings. Fifth, it encourages cooperation and communication between agencies and parties because judicial intervention is not immediately available.

When is federal question review permitted?

Whenever a Constitutional provision or a federal law is in question o The APA (Section 702) provides for review whenever a party has been adversely affected or aggrieved because of agency action: • §702 does not limit judicial review because federal courts may hear any claim arising under the Constitution or laws of the United States. This is known as FEDERAL QUESTION • The courts have not interpreted this to create an independent basis for judicial review o The APA requires that the form of the lawsuit be as prescribed by statute. o If not provided, then action shall be brought against U.S. or agency.

Name comment law writs?

o Certiorari - No longer available in federal system. It has been replaced by: o Injunction o Declaratory judgments May still be used in many state systems o Prohibition No longer used in the federal administrative system. This may still be used in many state systems o Mandamus - This may only be used to compel an act required by law. Cannot compel a discretionary act o Habeas corpus Still available

What are the forms forms of legal action?

o Declaratory judgment o Writ of Certiorari. o Writ of prohibition. o Writ of mandamus. o Writ of habeas corpus.

what decisions committed to agency review are subject to judicial review?

• Nonreview of decisions involving discretion is not absolute • Abuses of discretion may be reviewed • If an action is mandatory, it is subject to judicial review • If an action is discretionary, it's (usually) not. • Includes both procedure and substance • But actions can be overturned for "abuse of discretion"

Why did the president turn over tapes?

• President has the power of the sword? He could send out the power of the sword. Congress has the power of the money. • This also impacts behavior SCOTS does not have purse or sword? • They source of their power is legitimacy • Why did Nixon turn them over tapes. Because there is an expectation to turn over tapes. • Courts fool you the court is not political.

Association of Data Processing Organizations v. Camp

Facts: Petitioners sell data processing services to businesses. The Comptroller of the Currency made a ruling saying that national banks may make data processing services available to other banks and bank customers. The Association has brought suit challenging that ruling. Issue: Does the Association have standing to bring this law suit? Decision: Yes. The court differentiated between legal interests and the question of standing which asks whether the interest sought to be protected falls within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." They also recognized that the APA grants standing to a person "aggrieved by agency action within the meaning of a relevant statute." They determined that financial injury falls within the APA definition of standing. • This case creates a new test that looks at three criteria: 1.) The plaintiff must suffer an injury in fact 2.) The interests asserted must be within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. There must be a nexus between injury claimed and the right asserted. 3.) It must be likely that the injury will be resolved favorably o The Court's interpretation of APA Section:702 reference to a "relevant statute" to mean the substantive terms of the agency's statute, rather than the terms of any special review provisions specifically targeted at standing, conferred standing upon Petitioners that they would not have had under the traditional interpretation of the section

7) Issue of Discretion

his is rare, however. In most instances, discretionary decisions are reviewable under the arbitrary, capricious, abuse of discretion standard. The arbitrary and capricious standard applies to informal agency actions, such as informal rulemaking and informal adjudication. Although it does not apply to final decisions from formal rulemaking and formal adjudication, it does apply to many decisions involving the exercise of discretion made during those proceedings.

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. What? (Chevron Two-Step)

1) First, applying the ordinary tools of statutory construction, the court must determine "whether Congress has directly spoken to the precise question at issue. 2) If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id., at 842-843. But "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. .

Why does standing existing?

1) Judicial Economy -- Our courts are overwhelmed. If they are selective. 2) Judicial restraint

What are the two sides of the scope-of-review?

1) On one side, review of agency actions is necessary to prevent abuses. Without judicial review, individuals would be at the mercy of administrative agencies. 2)On the other side is the need to defer to an agency's experience and expertise. Judges are not engineers, doctors, or electricians. However, agencies are, in theory, expert in the subjects they regulate. Technical issues, therefore, are better left to be decided by an agency. In addition, there is the need to control courts' caseloads. Deference to agency decisions frees courts from time-consuming fact-finding. The scope of review must, then, provide agencies with some discretion and at the same time prevent abuses of authority. There are many standards of review, but the three most commonly applied are de novo, substantial evidence, and arbitrary and capricious.

What are the four common law doctrines?

1) Res Judicata 2) Collateral Estoppel 3) Equitable Estoppel 4) Haches

Relationship between standing and statutory rights of review?

1. If statutory law silent on the question of who has the right to petition for review, standing principles apply: 2. If statutory law narrows or limits the group that can seek review, the statute applies. 3. If a statute makes review available to those not qualified under standing principle, the statute is likely constitutiona. ,but may need to be definitively answered by SCOTUS.

9) Alternative Rationale

An agency must issue findings and conclusions following formal adjudications. Those must include "findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record." What if a court disagrees with an agency's rationale but can find an alternative theory to support the agency's decision? In Securities & Exchange Commission v. Chenery, the Supreme Court held that courts are limited to an agency's rationale, even if the court can find an alternative basis for affirming the agency's decision. This holding requires that agencies render thoughtful decisions. It prevents an agency from issuing findings with little analysis or insight into its rationale in hopes that a court will find a means by which it can be affirmed. It is judicially efficient because the burden is not placed on the judge to search for a solid foundation on which to set an agency's findings.

Chevron v. National Resource Defense Council

FACTS The Clean Air Act (the Act) required states that had not yet achieved national air quality standards to establish a permit program regulating new or modified major stationary sources of air pollution, such as manufacturing plants. The Environmental Protection Agency (EPA) passed a regulation under the Act that allows states to treat all pollution-emitting devices in the same industrial grouping as though they were a single "bubble". Using this bubble provision, plants may install or modify one piece of equipment without needing a permit if the alteration does not increase the total emissions of the plant. Several environmental groups, including the Natural Resources Defense Council, challenged the bubble provision as contrary to the Act. The U.S. Court of Appeals for the D.C. Circuit set aside the EPA regulation as inappropriate for a program enacted to improve air quality. ISSUE: Does the Clean Air Act permit the EPA to define the term "stationary source" to mean whole industrial plants only, which allows plants to build or modify units within plants without the permit required under the Act? FINDING: Yes. Justice John Paul Stevens, writing for a unanimous court, reversed. The Supreme Court held that the bubble regulation was a reasonable interpretation of the term "stationary source" in the Clean Air Act. Congress did not have a specific intention for the interpretation of that term, and the EPA's regulation was a reasonable policy choice. The regulation also provided reasonable accommodations for the many competing interests affected by the Act. Justices Thurgood Marshall, William H. Rehnquist, and Sandra Day O'Connor did not participate.

FCC v. Fox

FACTS: In 2004, the Federal Communications Commission said that TV stations could be fined for indecency violations in cases when a vulgarity was broadcast during a live program. That happened on Fox in 2002 and 2003 when Cher and Nicole Richie cursed during award shows and were not bleeped. The FCC never actually fined Fox, but the network took issue with the regulatory agency setting the stage for future fines and challenged the fleeting-expletive rules. The U.S. Court of Appeals for the Second Circuit ruled that the FCC's rules were "unconstitutionally vague" and had a "chilling effect." QUESTION Did the court of appeals err in finding the FCC's indecency policy unconstitutionally vague in its entirety? DECISION The Supreme Court held that the FCC's standards, as applied to the broadcasts in this case, were vague. The FCC did not give proper notice to broadcasters that they would be fined for fleeting expletives, so the practice violated due process. However, Justice Kennedy carefully noted that the Court did not decide whether the practice violated the First Amendment or that the indecency policy itself was unconstitutional. Only the way the policy was applied in this case was unconstitutionally vague. The FCC is free to modify its policy in light of this decision.

Massachusetts v. EPA

FACTS: Massachusetts and several other states petitioned the Environmental Protection Agency (EPA), asking EPA to regulate emissions of carbon dioxide and other gases that contribute to global warming from new motor vehicles. Massachusetts argued that EPA was required to regulate these "greenhouse gases" by the Clean Air Act - which states that Congress must regulate "any air pollutant" that can "reasonably be anticipated to endanger public health or welfare." EPA denied the petition, claiming that the Clean Air Act does not authorize the Agency to regulate greenhouse gas emissions. Even if it did, EPA argued, the Agency had discretion to defer a decision until more research could be done on "the causes, extent and significance of climate change and the potential options for addressing it." Massachusetts appealed the denial of the petition to the Court of Appeals for the D.C. Circuit, and a divided panel ruled in favor of EPA. QUESTION 1) May the EPA decline to issue emission standards for motor vehicles based on policy considerations not enumerated in the Clean Air Act? 2) Does the Clean Air Act give the EPA authority to regulate carbon dioxide and other greenhouse gases? FINDING: No and yes. By a 5-4 vote the Court reversed the D.C. Circuit and ruled in favor of Massachusetts. The opinion held that Massachusetts, due to its "stake in protecting its quasi-sovereign interests" as a state, had standing to sue the EPA over potential damage caused to its territory by global warming. The Court rejected the EPA's argument that the Clean Air Act was not meant to refer to carbon emissions in the section giving the EPA authority to regulate "air pollution agent[s]". The Act's definition of air pollutant was written with "sweeping," "capacious" language so that it would not become obsolete. Finally, the majority ruled that the EPA was unjustified in delaying its decision on the basis of prudential and policy considerations. The Court held that if the EPA wishes to continue its inaction on carbon regulation, it is required by the Act to base the decision on a consideration of "whether greenhouse gas emissions contribute to climate change."

Sacket v. EPA

FACTS: Chantell and Mike Sackett filled in about one-half acre of that property with dirt and rock in preparation for building a house. The U.S. Environmental Protection Agency issued a compliance order against the Sacketts. The compliance order alleged that the parcel is a wetland subject to the Clean Water Act and that the Sacketts violated the CWA by filling in their property without first obtaining a permit. The order required the Sacketts to remove the fill material and restore the parcel to its original condition. The Sacketts sought a hearing with the EPA to challenge the finding that the Parcel is subject to the CWA. The EPA did not grant the Sacketts a hearing and continued to assert CWA jurisdiction over the parcel. They challenged the compliance order as (1) arbitrary and capricious under the Administrative Procedure Act; (2) issued without a hearing in violation of the Sacketts' procedural due process rights; and (3) issued on the basis of an "any information available" standard that is unconstitutionally vague. QUESTION: Do landowners have a right to go to court to challenge a Clean Water Act order of the Environmental Protection Agency? Conclusion Yes. In a 9-0 decision, Justice Antonin Scalia wrote the majority opinion holding that the EPA's compliance order is a final agency action, and there is no other remedy for the Sackett's other than judicial review. Justice Scalia rejected each of the government's arguments that the Clean Water Act precluded judicial review of compliance orders. Justice Ruth Bader Ginsburg wrote a concurrence, noting that the Court ruled only on whether the Sackett's can seek review of the EPA's authority to regulate their land, not whether they can challenge the specific terms of the compliance order. Justice Samuel A. Alito also concurred, stating that judicial review of compliance is better than nothing, but the only real solution is a clarification by Congress of the ambiguities in the Clean Water Act .

CLAPPER V. AMNESTY INTERNATIONAL

Facts of the case Several groups, including attorneys, journalists, and human rights organizations, brought a facial challenge to a provision of the Foreign Intelligence Surveillance Act (FISA). The provision creates new procedures for authorizing government electronic surveillance of non-U.S. persons outside the U.S. for foreign intelligence purposes. The groups argue that the procedures violate the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers. The new provisions would force these groups to take costly measures to ensure the confidentiality of their international communications. The District Court for the Southern District of New York granted summary judgment for the government, holding that the groups did not have standing to bring their challenge. The groups only had an abstract subjective fear of being monitored and provided no proof that they were subject to the FISA. The U.S. Court of Appeals for the Second Circuit reversed, holding that the groups had standing based on a reasonable fear of injury and costs incurred to avoid that injury. Question Do respondents have Article III standing to seek prospective relief under the FISA? Conclusion No. Justice Samuel A. Alito, writing for a 5-4 majority, reversed and remanded for further proceedings. The Court held that the respondents did not have standing under Article III of the U.S. Constitution because no injury occurred. Claiming a reasonable likelihood that their communications would be intercepted under FISA is not enough to show future injury for standing purposes. The Court also refused to acknowledge a present injury stemming from the respondents' choice to take costly measures to protect their confidential communications. Justice Stephen G. Breyer dissented, arguing that the future harm to respondents is not speculative and therefore should be sufficient to establish standing. Since there is a high probability that the government will intercept at least some of the respondents' communications, the respondents should have standing to bring the suit. Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.

Federal Election v. Atkins (page 260)

Facts of the case The Federal Election Campaign Act of 1971 (FECA) imposes recordkeeping and disclosure requirements upon political committees which receive more than $1,000 in "contributions" or which make more than $1,000 in "expenditures" in a year "for the purpose of influencing any election for Federal office." Certain assistance does not count toward the expenditure cap if it takes the form of a "communication" by a "membership organization or corporation" "to its members" as long as the organization is not "organized primarily for the purpose of influencing [any individual's] nomination... or election." A complaint filed by a group of voters asked the Federal Election Commission (FEC) to order the American Israel Public Affairs Committee (AIPAC) to make public the information that FECA demands of political committees. Ultimately, the FEC found that AIPAC was not a political committee because its major purpose was not the nomination or election of candidates. The en banc Court of Appeals concluded that the FEC's major purpose test improperly interpreted FECA's definition of a political committee. Question Do voters have the proper legal standing to challenge the Federal Election Commission's decisions regarding political committees? HOLDING: Yes. In a 6-3 opinion delivered by Justice Stephen G. Breyer, the Court held that voters seeking information, to which they believe FECA entitles them, have standing to challenge the FEC's decision not to bring an enforcement action. Because FECA seeks to address the voters' injury, the failure to obtain relevant information, Justice Breyer concluded that the voters had prudential standing. Furthermore, because the voters' inability to obtain information constitutes an "injury in fact," continued Justice Breyer, the voters had standing under Article III. The Court did not address the FEC's major purpose test, allowing the FEC to address the issue under newly proposed rules. Justice Antonin Scalia filed a dissenting opinion, in which Justices Sandra Day O'Connor and Clarence Thomas joined.

Federal Crops Insurance Corp v. Miller

In that case, a farmer relied on the representation of a government agent that his crops were insured. After his crops were destroyed, his claim for proceeds was denied. The government claimed that the type of crops the farmer grew were not insurable. The Supreme Court held that the government was not bound by its agents' representations because it had published a regulation stating what crops were eligible for coverage. The Court concluded that the regulation provided the farmer with adequate notice, despite the representation by the government official. In 1951, four years after Merrill, the High Court issued Moser v. United States.40 In that decision, the Court held that the incorrect advice of a government agent was binding. This appeared to open the door to application of equitable estoppel against the government. From 1951 to 1981, there was some relaxation of the rule of no estoppel against the government

Res Judicata

Latin for "a matter adjudged." Doctrine that precludes a party from relitigating a final judgment on the merits issued by a competent court or administrative tribunal.

Mandamus

Latin for "we command." Common law writ issued by a superior tribunal to an inferior tribunal or person requiring that some action be taken. Normally, the writ can only compel that ministerial acts be taken.

Habeas Corpus

Latin for "you have the body." Common law writ issued by a court to a custodian of a person to bring the prisoner before the court to determine the lawfulness of the imprisonment.

McKart v. US

McKart was convicted for failing to report for induction into the armed forces. He had been classified as a 4-A, exempt from induction because he was the sole surviving son in a family whose head had been killed in WWII. McKart did not appear before the Selective Service Board to contest reclassification and he also failed to report for induction. The Government maintains, however, that petitioner cannot raise the invalidity of his I-A classification and subsequent induction order as a defense to a criminal prosecution for refusal to report for induction. According to the Government, petitioner's failure to appeal his reclassification after the death of his mother constitutes a failure to exhaust available administrative remedies and therefore should bar all judicial review. The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. . . . The doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions. Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved. . . Petitioner's failure to take his claim through all available administrative appeals only deprived the Selective Service System of the opportunity of having its appellate boards resolve a question of statutory interpretation. Since judicial review would not be significantly aided by an additional administrative decision of this sort, we cannot see any compelling reason why petitioner's failure to appeal should bar his only defense to a criminal prosecution.

Hein v. Freedom from Religion Foundation

President George W. Bush issued an executive order creating the White House Office of Faith Based and Community Initiatives.The objective was to give religious organizations that provide social services, conduct research, or otherwise desire support for nonreligious activities equal access to federal funding. Relying on Flast, the plaintiffs asserted that their status as taxpayers established standing. Held: The Court rejected the standing theory when applied to executive discretionary expenditures in Hein v. Freedom from Religion Foundation, Inc. For Flast to apply, a citizen must demonstrate a direct Congress-to-expenditure link that violates the Establishment Clause. Otherwise, the Court reasoned, every expenditure by every government official could be challenged, opening a floodgate of litigation.

Primary Jurisdiction (Standing)

Requirement that disputes between private parties be raised in an administrative forum before being filed in court if an administrative agency has jurisdiction over the issues in dispute Lichten v. Eastern Air Lines,24 a plaintiff sued the defendant airline, alleging that its negligence resulted in the loss of jewelry. The court determined that the Civil Aeronautics Board (CAB) had jurisdiction over the reasonableness of practices relating to claims of this nature; therefore, the case was to be initially decided by the CAB even though it had no authority to award damages. The effect of this decision, which has been criticized, is that a plaintiff must bring two actions: the first in the agency, so that the agency can pass on the issue presented; and the second in a court, to obtain the relief sought..

4) Issues of Law

Section 706(2) of the APA states that reviewing courts are to "hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right."

Substantial evidence standard

Standard applied on review; requires a court to affirm an agency decision if a reasonable person could have reached the same conclusion as the agency did. Reviewing courts may examine the facts found and conclusions reached by an agency. A court may not, however, substitute its judgment for that of the agency under the substantial evidence test. The APA specifically requires that when applying the substantial evidence test, courts are to consider the entire record.

Woodward et al. v NGO

This case presents the question whether a prisoner can satisfy the Prison Litigation Reform Act's exhaustion requirement, 42 U. S. C. § 1997e(a), by filing an untimely or otherwise procedurally defective administrative grievance or appeal. We hold that proper exhaustion of administrative remedies is necessary. Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), as amended, 42 U.S.C. § 1997e et seq., in 1996 in the wake of a sharp rise in prisoner litigation in the federal courts,. The PLRA contains a variety of provisions designed to bring this litigation under control. See, e.g., § 1997e(c) (requiring district courts to weed out prisoner claims that clearly lack merit); § 1997e(e) (prohibiting claims for emotional injury without prior showing of physical injury); § 1997e(d) (restricting attorney's fees). Respondent is a prisoner who was convicted for murder and is serving a life sentence in the California prison system. In October 2000, respondent was placed in administrative segregation for allegedly engaging in "inappropriate activity" in the prison chapel. Two months later, respondent was returned to the general population, but respondent claims that he was prohibited from participating in "special programs," including a variety of religious activities. Approximately six months after that restriction was imposed, respondent filed a grievance with prison officials challenging that action. That grievance was rejected as untimely because it was not filed within 15 working days of the action being challenged. . . . Respondent appealed that decision internally without success, and subsequently sued petitioners—California correctional officials—under 42 U.S.C. § 1983 in Federal District Court. The District Court granted petitioners' motion to dismiss because respondent had not fully exhausted his administrative remedies as required by § 1997e(a). The Court of Appeals for the Ninth Circuit reversed and held that respondent had exhausted administrative remedies simply because no such remedies remained available to him. . . . Respondent contends that requiring proper exhaustion will lead prison administrators to devise procedural requirements that are designed to trap unwary prisoners and thus to defeat their claims. Respondent does not contend, however, that anything like this occurred in his case, and it is speculative that this will occur in the future. . . . Respondent argues that requiring proper exhaustion is harsh for prisoners, who generally are untrained in the law and are often poorly educated. This argument overlooks the informality and relative simplicity of prison grievance systems like California's, as well as the fact that prisoners who litigate in federal court generally proceed pro se and are forced to comply with numerous unforgiving deadlines and other procedural requirements. For these reasons, we reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for proceedings consistent with this opinion.

What are two essential questions of judicial review?

o Does a court have authority to review a particular agency action? If so, o What is the scope of the review?

What are two types of judicial review?

o Review of agency action o Claims for damages

What decisions committed to agency discretion" are NOT subject to judicial review

o Specifically exempted by the APA o Suits filed that challenge agency discretion are dismissed due to lack of authority to hear the case In Webster v. Doe, (mentioned above) the firing, pursuant to authority vested in the director by statute, of a homosexual CIA employee was deemed nonreviewable because the alleged national security issue was considered by the courts as committed to the agencies discretion