Judicial Review of Agency Action: Getting into Court
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Judicial Review of Agency Action: Getting into Court
• Courts review a relatively small percentage of agency decisions
•Courts set aside an even smaller percentage of agency decisions
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Judicial Review
• Whether the case may be taken to court?
• When judicial review is appropriate?
• What kind of review the court will perform on the merits?
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Judicial Review: The Whether Issues
• Jurisdiction
• Form of action
• Sovereign immunity
• Preclusion
• Standing
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1. Judicial Review: Jurisdiction
• Recall your fundamentals!!
• Federal courts are courts of limited jurisdiction
• Limits on that jurisdiction: Article III of the Constitution
• State courts are usually courts of general jurisdiction
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Jurisdiction (cont’d)
• No one gets into the pearly gates of federal court unless Congress says so
• Congress must have enacted a statutory permission slip
• Every case filed in a federal court requires a jurisdictional statute
• The statutes are found in U.S.C.
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Jurisdiction
• Look in essentially two places for authority
• The enabling act
• The general jurisdictional statutes: 28 U.S.C. 1331 or 28 U.S.C. 1337
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Jurisdiction (cont’d)
• Enabling act jurisdiction• Defects in subject matter jurisdiction are
fatal: they may be raised ANY TIME IN THE COURSE OF LITIGATION
• Most attorneys will invoke as many jurisdictional predicates as plausibly relate to their case
• Be careful because the enabling act directs you to the court
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Jurisdiction (cont’d)
• 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.”
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2. Venue, Service of Process and Proper Form of Action
• Again, look to the statute for venue• If statute is silent, then 28 1391(e)• The defendant resides• A substantial part of the events or omissions
giving rise to the claim occurred, Or a substantial part of property that is the subject of the action is situated or
• The Plaintiff resides, if no real property is involved
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Service of Process
• Usually uncomplicated, but don’t forget it• If against federal agency, then Rule 4:
Service on the USA in the district in which the action is being brought and service by certified or registered mail on the Attorney General in Washington
• If against an agency or officer of the U.S., the plaintiff must serve the U.S. Attorney, the Attorney General and the agency
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Injunctive Relief
• Section 703 of the APA: any applicable form of legal action including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus.”
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3. Sovereign Immunity
• Larson v. Domestic and Foreign Commerce Corp. 337 U.S. 682 (1949): permitting a lawsuit against an agency official in his personal capacity, based on “unconstitutional administration.”
• In 1976, Congress amended Section702 of the APA to eliminate the defense of sovereign immunity: Plaintiffs seeking “other relief”
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Sovereign Immunity
• Seeking money damages—Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971): But recovery is only against the employees and may not be satisfied out of the federal treasury.
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4. Preclusion
• What if there is a statute outside the APA that expressly prohibits a court from reviewing an agency decision?
• Most statutory preclusions appear on the face of the statute
• VA used to have a blanket preclusion
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Preclusion of Action Committed to Agency Discretion
• Section 701
• Section 701(a)(2): committed to agency discretion preclusion
• Section 706 review for “abuse of discretion”
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Committed to Agency Discretion
• Whether broad agency discretion already exists?
• The expertise and experience necessary to understand the subject matter
• The managerial nature of the agency
• The propriety of judicial intervention and the ability of a court to insure correct results
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Committed to Agency Discretion
• The need for informality and speed in agency decisions; and/or
• Whether other controls on agency discretion exist?
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OVERTON PARK
• Two applicable statutory provisions:1. the Department of Transportation
should consider alternatives to building the highway through the park
AND2. Any decision to build through the
park should include thorough planning to minimize environmental disruptions
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Discretion to take no Agency Action
1. Discretion Not to Make a Rule
2. D.C. Circuit suggests now that agency refusals to make a rule are not entitled to any presumption of non-reviewability
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2. Discretion Not to take Enforcement Action
• Agency refusals to pursue enforcement cases are not reviewable
• Thus, the presumption to be applied in cases of agency refusal to pursue enforcement actions is just the opposite of the Overton Park presumption
• Any agency’s refusal to take enforcement action is presumptively NOT reviewable
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5. Standing
• Springs from the case and controversy requirement in Article III, Section 2 of the U.S. Constitution
• Baker v. Carr, 369 U.S. 186 (1962): “personal stake in the outcome” test
• This test is the bottom line for federal court standing
• Minimum showing necessary for a plaintiff to survive a motion to dismiss
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Staying in Court: Intermediate Issues
• Does the agency need to take a look at the dispute before you go to Court?
• If yes, better get this resolved before go to Court, or ….
• Have you exhausted administrative remedies?
• Is your matter ripe for resolution?
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Judicial Review: On the Merits
• The final stage of judicial review
• Read Section 706
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The 706 Options
• A court has the power to “decide all relevant questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of the terms of an agency action.”
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Court review: Options
• Arbitrary and capricious• An abuse of discretion• Or otherwise not in accordance with the
law; or is• Contrary to constitutional right, power,
privilege or immunity, or• In excess of statutory jurisdiction, authority
or limitations; or• Short of statutory right OR
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Court review: Options
• Without observation of procedure required by law;
• Unsupported by substantial evidence [in a 556, 557 case];
• Unwarranted by the facts [in a de novo court proceeding].
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Overton
• Provides an understanding of how the Court with deal with agency action that is neither rulemaking nor formal adjudication
• Explains parameters of APA Section 701(a)(2)(action committed to agency discretion and thus precluded from judicial review)
• Says a lot about Section 706
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Overton (cont’d)
• Reviewing court is required to make a through examination of the entire record
• “Hard look” doctrine
• “Hard look” doctrine flows from Section 706--obligates a court to “review the whole record”
• What does this mean? The entire record?