AdminLaw Outline
I. Justiciability: Timing and Availability of Judicial Review
a. Justiciability Doctrines
i. Preclusion
ii. Standing
iii. Ripeness
iv. Finality
v. Exhaustion
b. Justiciability questions
i. Whether judicial review is available.
ii. For and against whom is judicial review available.
iii. What form the action for judicial review must take.
iv. Where an action for judicial review must be brought.
v. When an action for judicial review is appropriate.
c. Justiciability issues can be raised by courts sua sponte.
d. Jurisdiction (not on exam)
i. The APA does not provide an independent basis for jurisdiction. Califano v. Sanders, 430 U.S. 99 (1977).
ii. For most if not all administrative cases, jurisdiction is found (or not found) within the scope of 28 U.S.C. § 1331: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
iii. Often, the agency’s governing statute identifies the proper forum
iv. For reasons of judicial economy, courts interpret specific statutes, whenever possible, to direct review to the CoA, even in cases of informal agency action where there is no formal agency record.
e. Preclusion
i. Presumption that judicial review is available: APA provisions reinforce this, subject to APA-created exceptions.
ii. APA § 701: Limits on Jurisdiction
1. Limits judicial review in two circumstances:
a. § 701(a)(1): where a statute precludes judicial review; or
b. § 701(a)(2): where agency action is committed to agency discretion by law.
2. Where either of these provisions applies, judicial review of agency action is not available.
iii. 701(a)(1)
1. Express Preclusion
a. Obvious. End of story. Not unusual to be provisions addressing judicial review that exempt agency decisions from judicial review.
i. Abbot Lab v. Gardener (SCT)
1. Rule: Presumption in favor of judicial review overcome only by persuasive reasons that overcome by congress.
2. Courts tend to parse language carefully, find judicial review if there are any loopholes.
3. Courts rarely find that provisions expressly limit judicial review.
b. Examples of No Preclusion
i. 7 U.S.C. §§ 1385, 1429 (governing judicial review of actions pursuant to a subsidy payment program for wheat farmers authorized by the Agriculture Act of 1949, in pertinent part):
1. 7 U.S.C. § 1385: [T]he facts constituting the basis for any . . . payment under the wheat . . . program[ ] authorized by [the Agriculture Act of 1949], any loan, or price support operation, or the amount thereof, when determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be reviewable by any other office or agency of the Government.
2. 7 U.S.C. § 1429: Determinations made by the Secretary under [the Agriculture Act of 1949] shall be final and conclusive: Provided, That the scope and nature of such determinations shall not be inconsistent with the provisions of the Commodity Credit Corporation Charter Act [15 U.S.C. § 714 et seq.].
3. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1572-73 (10th Cir. 1994): The court held that these two provisions and APA § 701(a)(1) did not preclude judicial review of a due process claim raised by farmers whose subsidy payments were cut under the wheat subsidy payment program to which these two provisions applied.
ii. Immigration and Naturalization Act, 8 U.S.C. § 1252(a)(2)(B)
1. (2) Matters not subject to judicial review
2. (B) Denials of discretionary relief
3. Notwithstanding any other provision of law, no court shall have jurisdiction to review–. . .
4. (ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.
5. Spencer Enterprises, Inc. v. U.S., 345 F.3d 683 (9th Cir. 2003): The majority found the action in question was not in fact discretionary so was reviewable despite 8 U.S.C. § 1252(a)(2)(B)(ii), while the dissent maintained that judicial review was precluded by that provision and APA § 701(a)(1).
c. Examples of Preclusion
i. Immigration and Naturalization Act, 8 U.S.C. § 1252(g):
1. (g) Exclusive jurisdiction. Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
2. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999): The Court in this case considered a circuit split over whether this provision precluded judicial review of agency removal orders that raised constitutional claims and held against reviewability.
ii. 12 U.S.C. § 1818(i)(1) (governing the Federal Deposit Insurance Corporation)
1. (1) The appropriate Federal banking agency may in its discretion apply to the United States district court, or the United States court of any territory, within the jurisdiction of which the home office of the depository institution is located, for the enforcement of any effective and outstanding notice or order issued under this section or under section 1831o or 1831p-1 of this title, and such courts shall have jurisdiction and power to order and require compliance herewith; but except as otherwise provided in this section or under section 1831o or 1831p-1 of this title no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under any such section, or to review, modify, suspend, terminate, or set aside any such notice or order.
2. Hindes v. FDIC, 137 F.3d 148 (3d Cir. 1998): The court in this case held that the FDIC’s issuance of a notification finding that a bank was operating in an unsafe and unsound condition was unreviewable in light of 12 U.S.C. § 1818(i)(1) and APA § 701(a)(1).
2. Implied Preclusion
a. What if you have statutory silence?
i. Arguments on both sides.
ii. You’d think that if courts would parse express preclusion, then implied preclusions would be a non-starter.
1. Why would courts find this?
iii. Nonetheless, we have cases where courts conclude that Congress didn’t intend to review.
b. Block v. Community Nutrition Institute (SCT, p. 777)
i. Facts: Involved a
that falls within informal adjudication. Agency has to implement it, but can’t force rulemaking. Once they’ve submitted paperwork, it’s subject to A&C review. Statute doesn’t require agency to notify parties (congress knows how to do this). So, the farmer in this case is still out of luck.
3. What do you do when an agency has statutory authority, but they’re not implementing it? Should that be reviewable?
4. So what does it mean to be “committed to agency discretion by law”?
a. Chevron: all about agency discretion over policy choices inherent in ambiguous statutes.
i. No problem subjecting these to judicial review.
ii. Mead: ambiguity means discretion.
1. How reconcilable with preclusion?
b. Overton Park
i. Argued that challenge was precluded
1. Court said legislative history of 701a2 should be construed narrowly. Only operates to preclude judicial review where statutes are drawing in such broad terms that there “is no law to apply”
a. Statute is so broad and open-ended that there isn’t anything that the agency is required to do. ME: THIS IS KEY.
5. Case where there is “no meaningful standard”
a. Heckler v. Chaney (1985)
i. Facts
1. Respondents sentenced to death by lethal injection.
2. What’s really going on here?
a. FDA doesn’t want to put a label on the drugs.
3. People challenging really concerned with off-label usage of drugs?
ii. SCT says FDA doesn’t have to do anything about this.
1. Here, saying presumption against reviewability for an agency’s decision not to act.
a. Analogized to prosecutorial discretion. Agencies part of executive branch.
b. If there are “guidelines for the agency to follow,” prosecutorial discretion is rebutted.
iii. Rules
1. “No meaningful standard” against which to judge the agency’s action
a. What does this mean?
b. Makes more sense than “no law to apply” Agency discretion granted without standard by which you are able to evaluate that action.
i. At odds with “no law to apply”? At least no meaningful standard gives you something to look for. Nevertheless, both are cited in the same cases.
ii. How do you interpret court opinions that throw both together?
iii. Brings us to Webster, Lincoln cases.
c. Creates some sort of legislative rule for agency to go ahead and act.
2. Presumption against reviewability of inaction
6. Webster v. Doe, p. 800
a. Facts
i. Doe challenging being fired from the CIA. CIA says that he’s gay.
ii. CIA director thinks that 102c gives him the authority to fire Doe.
iii. Court finds committed to agency to discretion by law.
SCT focuses on other language “he
