Access to Judicial Review

1. Access to Judicial Review Part III

2. Final Agency Action

3. Is there a Final Agency Action? • Same principles as the rules on appealing orders by trial judges • Bennett v. Spear, 520 U.S. 154, 177-178 (1997) • It must be the consummation of the agency process • It must affect legal rights or have legal consequences

4. Federal Trade Commn. v. Standard Oil Co. of California, 449 U.S. 232 (1980) • FTC finds that Standard Oil is engaging in anticompetitive practices • Standard wants to appeal this • Can be used in private antitrust actions • Court says this alone does not have legal consequences • Standard must wait until the agency brings an enforcement action

5. National Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971) • Agency opinion letters • This was to an association explaining how the agency would interpret a new law • Detailed explanation • From the secretary's office • In this case, the court found that the opinion was sufficiently specific and from a high enough level to affect the plaintiff's rights

6. Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept. v. Dole, 948 F.2d 953 (5th Cir. 1991) • The opinion was to an individual party, based on that party's specific facts - like an IRS letter ruling • The plaintiff was a third party who wanted to challenge the opinion as it would be applied to others • The court found that this was not a final agency action, at least as to other parties

7. Franklin v. Massachusetts, 505 U.S. 788 (1992) • MA wants to contest the method the Department of Commerce used to correct the census numbers • Why does this matter? • The President is charged with determining the final count, and Congress does the reallocation of representatives • The court found that the report from Commerce was only a recommendation to the President • Still an issue: who do you count?

8. Western Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659 (7th Cir. 1998) • This was an opinion letter to two specific parties about whether they were subject to the joint employer doctrine • The letter said they were, and that they were now on notice so they would be subject to the penalties for a willful violation • The court found this was a final agency action • This was influenced by the harsh results

9. Exhaustion of Administrative Remedies

10. Exhaustion of Administrative Remedies • This is another timing issue • Does the plaintiff have to go through the agency process before going to court? • Does the plaintiff have to present the same issues to the agency as will be challenged later in court?

11. APA - 5 U.S.C. § 704 • . . . Except as otherwise expressly required by statute, agency action otherwise final is final for purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority. • Can the agency enforce an order and still require exhaustion of agency appeals process?

12. Is Exhaustion Required by Statute or Regulation? • The key question is whether the enabling act or an agency regulation requires exhaustion • If exhaustion is not required, then the party may go to court directly • However, if there is an agency process available, and you lose in court, you may have waived your agency appeal • Does the rule have to say exhaustion, or is it implied by having the process?

13. Exceptions to Exhaustion • Will requiring exhaustion prevent the court from properly reviewing the action? • Has the enforcement been stayed? • Will the plaintiff suffer irreparable harm? • Can the agency process provide the requested relief? • Is the agency so biased or prejudiced that it cannot give a fair review?

14. Example: HUD Regulations • HUD regulations allow, but do not require that an administrative appeal be filed • The granting of the appeal is discretionary with the secretary • The ruling of the ALJ becomes final in 30 days and is not stayed by a request for a hearing • Must a litigant request an administrative appeal before going to court?

15. Portela-Gonzalez v. Secretary of the Navy, 109 F.3d 74 (1st Cir. 1997) • Plaintiff is fired from a civilian Navy job • Plaintiff appeals through 3 levels, but skips last level. • The APA does not apply by statute • Firing is in force during appeal • What is the common law of exhaustion? • Is the APA narrower? • Just knowing that you are going to lose through the agency process is not enough • You have to show that the agency is biased or prejudiced (which is nearly impossible)

16. What if You Screw Up Your Administrative Appeal? • Assume that a person tried to exhaust the administrative appeals, but makes a procedural error such as missing a deadline, and the appeal is dismissed by the agency • Since there is no further process available at the agency, has he exhausted the agency remedies? • Has he gotten a final judgment from the agency on the merits?

17. Administrative Issue Exhaustion • Must each issue that will be appealed to the courts be raised at the agency level? • What about in a regular trial: If you do not present an issue to the trial court - other than a jurisdictional issue - can you raise it at the first time on appeal? • What if you raise some issues with the agency, but not others - can you then appeal the ones you raised?

18. Sims v. Apfel, 530 U.S. 103 (2000) • Social Security disability benefits • The court held that the general rule is that plaintiffs who are subject to exhaustion of remedies must also present the issues they want to appeal to the agency • In the specific case, the court found that the special nature of SS mitigated against preclusion • Informal, and applicants seldom have counsel

19. Ripeness • "The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." • Ripeness is not codified in the APA, so it is a common law doctrine • Ripeness is jurisdictional, so it can be raised at any time

20. Was Abbott "Ripe"? • In a facial challenge, the court does not need to see how the rule is applied • The court must also find that this is a final agency action • In this case, the rule required the product labels to be changed without further agency action • What is the impact of this regulation? • What is the risk of enforcement?

21. Pre and Post Enforcement Review • While review is favored, there is no right to review before the agency brings an enforcement actions • Plaintiffs asked for an injunction • They claimed they could not risk enforcement • An injunction prevents the agency from acting • Prevents important health and safety measures • Enmeshes the court in agency policy making

22. What are the Equitable Factors? • Since there is no right to pre-enforcement review, the plaintiff must show the court an equitable basis for granting review, which resembles the factors for granting an injunction • Is there an immediate effect of the agency action on the plaintiff's activities? • What is the risk of waiting for enforcement? • Who will get hit by enforcement? • What are the special factors in the drug business?

23. Abbott Rule • Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the [APA] must be permitted, absent a statutory bar or some other unusual circumstance. . .

24. Toilet Goods Assn. v. Gardner, 387 U.S. 158 (1967) • Companion case to Abbott • FDA promulgated a rule allowing them to inspect toilet good manufacturers to assure compliance with FDA regulations • How is a rule allowing inspections different from the rule in Abbott? • How are the equities different?

25. Example: EPA Smoke Spotters • The “credible evidence” rule allowed visual observation of smoke from a smokestack to be used as evidence that a person was violating its Clean Air Act requirements • Plaintiffs contest the action, saying it was beyond agency authority • Is this more like Toilet Goods or Abbott Labs? • Do plaintiffs have to change their behavior?

26. Was the Dispute Ripe in National Automatic Laundry? • The court found that the dispute in National Automatic Laundry was ripe because the opinion included detailed factual hypotheticals on the application of the doctrine in different situations • This gave the court the necessary factual information to review the application • Without this detail, the court would have required the plaintiff to wait for enforcement so there would be facts to evaluate

27. What about Compliance Orders? • An order to a specific party to obey the law • Based on the agency's view that the party is not in compliance with the law • Not self-enforcing - the agency must bring a separate enforcement action to force compliance • Does this look like Standard Oil? • Is this an appealable final action? • Is it ripe?

28. What if You Benefit from a Policy that is Being Changed? • FDA regulates contamination in foods • These are impossible to completely remove • The agency issues allowable (action) levels • You represent consumers who believe that the new (higher) action levels are dangerous • Is the action ripe as to your claim? • Can it get riper? • What about manufacturers who thinks the level is high? • How are they different from consumers?

29. What if the Agency Changes a Permit Process to Your Detriment? • The NRC says it is loosening up the permit process for dumping low level waste • Is this ripe? • What has to happen before any waste is dumped under this rule? • What if the forest service loosens up the permit process for clear cutting, but there must be a timber sale with public input before the timber can be cut?

30. Stopped Here

31. Ripeness Recap • Ripeness is the other side of exhaustion of agency remedies • Enforcement actions, permits, and other affirmative agency actions against your client • If you have done everything the agency requires, then you exhausted agency remedies • Your case is ripe

32. When Can You Go to Court Without Exhausting Agency Actions?

33. The agency action is unconstitutional or exceeds the agency's legal authority • Rulemaking - Facial Challenge • You have to convince the court that the rule does not have a legal application • You have to convince the court that your client will suffer significant harm if it must wait for enforcement • If you fail, then you have to wait until the agency acts against your client • Agency enforcement actions let you go for an injunction or other attack on the agency authority

34. Impossibility of Agency Remedy • The agency does not offer the remedy you seek • You want money damages and the agency remedies only offer that the agency will stop enforcement actions • Congress can require you to go anyway • The agency is biased against your client • Just showing that you are going to lose is not enough

35. Is there a Final Agency Action? • Most of the hard cases involve agency actions that may put your client at risk, but are not enforcement actions and do not have set appeals standards • In general, you have to show that your client's rights are significantly impacted and that there is a real threat of enforcement. • Opinion letters are a good example • Is it directed to your client? • Is it specific enough to force changes in your client's behavior? • Is there a real threat of enforcement?

36. Primary Jurisdiction • This is related to "Committed To Agency Discretion" • In these disputes there is a issue which meets the standard for judicial review • The primary jurisdiction question is whether the courts should let the agency resolve the problem first • This is important when national uniformity is important, such as automobile emissions standards • The court gives the agency the chance to rule for the country before hearing an individual dispute • Often resolves the dispute, so no judicial remedy is necessary

37. End of Chapter 6