Sources of Judicial Review Power

Common Law – “Judicial Review” of constitutionality of federal legislation (Marbury v. Madison)

• Statutory –

  • Substantive statute often authorizes jurisdiction of court

  • APA (and NCAPA) grants court jurisdiction of regulatory process

  • “Citizen Suit” provisions in pollution control statutes

    • i.e. Clean Water Act

    • NOTE:  even though statue has a citizen suit provision, still must overcome threshold issues (see below)

Constitutional Limitation

• U.S. Const. Art III:  courts can hear “cases or controversies”

  • Must be a real case Muskrat v United States, 219 U.S. 346 (1911)

  • Otherwise, will be a mere “advisory opinion”

• This phrase has been interpreted by US Supreme Court to require:

1. Standing

2. Ripeness

   1. Exhaustion

3. Mootness

Example:  APA 5 U.S. Code § 702. Right of review

“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by __agency action __within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or __employee __thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.”

Standing to Sue

The threshold question of whether this plaintiff (this litigant) is the proper party to bring the lawsuit

• Not whether the issue itself – the subject matter – is justiciable or could otherwise be heard by this court

• The court cannot gain jurisdiction if the plaintiff does not have proper standing to sue

• For example:

  • Does federal district court have the subject matter jurisdiction to hear a party’s complaint against the agency for denial of a permit?  (yes, see 5 U.S.C. §702 [APA])

  • Next question:  is the party bringing the litigation the right party to do it? (well, it depends…)

• Citizen Suit provisions of statutes

  • Private individuals and organizations to file suit to remedy statutory violations or compel performance

  • E.g. Clean Water Act allows “any citizen to bring a civil suit on his or her behalf against any other person, including the United States, for violation of "[any] effluent standard or limitation under [the Act] ."

• Injury-in-fact personal to plaintiff

  • Article III “case or controversy” requirement

Standing Jurisprudence

• Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

  1. Injury in Fact

     1. “concrete and particularized” and

     2. ”actual or imminent, not hypothetical”

  2. Causal connection:  injury traced to agency action

  3. Likelihood that injury will be redressed by favorable court decision

• Advocacy membership groups receive standing in Sierra Club v. Morton, 405 U.S. 727 (1972)

• E.g. Farm Bureau has standing to sue in cases involving member farmers

Ripeness and Mootness

• Ripeness

  • Court considers whether issues presented are ready for judicial decision

  • In Admin Law, called “Final Agency Action”

  • Exception:  Whether delay (i.e. awaiting result) will cause hardship to parties

    • Example:  Rule will require parties to adhere to the rule of risk serious penalties

• Mootness

  • Initial controversy is no longer ‘live’ given a change in law or status of parties

  • Act of party otherwise resolves the issue (i.e. no damages)

    • E.g. Legislature has revoked the law

    • E.g. Administration has rescinded the rule
      

Exhaustion of Administrative Remedies

• Exhaustion required before Judicial Review (4 reasons)

  1. Allows exercise of granted authority (from legislature)

  2. Protects agency autonomy allowing expertise to be applied to situation

  3. Allows parties to develop facts and narrow issues (builds the fact record)

  4. Judicial economy (keeps docket clear)

• Court cannot require exhaustion if statute or other rule does not require exhaustion

• Statute must lay out an administrative appeal procedure

Terminology of Rejection Based on Type of Rulemaking

• Formal rulemaking

  • “unsupported by substantial evidence …reviewed on the record of an agency hearing…” 5 U.S.C. Code §706(2)(E) 

• Informal or Hybrid rulemaking

  • Arbitrary, capricious, abuse of discretion

  • higher than that of substantial evidence

  • May not be real distinction

Standards of Judicial Review

• Chevron deference (Chevron v. NRDC, 467 U.S. 837 (1984), two steps:

  1. Review whether statute silent or ambiguous as to Congressional intent

  2. Determine whether Agency’s action is a permissible interpretation of the statute?

• Arbitrary and capricious standard applied where Chevron does not apply
  

Additional Review Requirements

Agencies not allowed to revise regulations without going through the rulemaking process

• Courts cannot impose procedural requirements in addition to those required by statute (Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1979)

Remedies

• Injunctive relief barring enforcement

• Writ of Mandamus

• Declaratory relief that an administrative decision or rule is invalid

• Sovereign immunity bars monetary compensation unless statute provides for it

  • Federal Tort Claim Act

  • Other

• Private rights of action

  • These are the common law claims of personal injury, nuisance, trespass, etc.