Availability of Review

Question 1

Review-ability of Agency Action: “action”

Answer 1

1. “Action” subject to judicial review under APA, Chapter 7 and remedial power of court to
   a. 706 (1) “compel agency action unlawfully withheld or unreasonably delayed”
   b. 706 (2) “hold unlawful and set aside agency action, findings, and conclusions…”

Question 2

Review-ability of Agency Action: exceptions to review ability

Answer 2

a. Sec. 701(a) (1) “statutes preclude judicial review; or”
b. Sec. 701(a) (2) “agency action is committed to agency discretion by law.”
i. “No law to apply.” Overton Park
ii. Common law of reviewability
c. Even if exceptions apply, still presumption in favor of review of constitutional claims
i. Sec. 701 (a) (1): Johnson v. Robison
ii. Sec. 701 (a) (2): Webster v. Doe

Question 3

Reviewability of Agency Action: Inaction: Norton

Answer 3

APA only allows courts to examine government agencies’ failures to meet specific statutory requirements. A general complaint based on policy differences - like SUWA’s view that the off- road vehicles made the Wilderness Study Areas unsuitable for preservation as wilderness - could not be heard under the APA.

Inaction must be discrete and non-discretionary

Question 4

Reviewability of Agency Action: Inaction: Public Citizen

Answer 4

Failing to act for 8 years, 3rd Cir. finally compelled under the “reasonableness” standard.

Question 5

Reviewability with Statutory Preclusion: 701a(1)-(2)

Answer 5

i. APA, Sec. 701a(1) and a(2) express exceptions to “reviewability
1. Sec. 701a(1) “statutes preclude judicial review; or”
2. Sec. 701a(2) “agency action is committed to agency discretion by law.”

Question 6

Reviewability with Statutory Preclusion: 701a(1)-(2) Exceptions

Answer 6

a. Even when preclusion provision, won’t bar constitutional claims. Johnson; Cuozzo
b. Even when preclusion provision, won’t bar “law” outside of the regulatory regime agency created to administer. Traynor; Cuozzo
c. “That present other questions of interpretation that reach, in terms of scope and impact, well beyond ‘this section.’” Cuozzo (depends on how preclusion provision drafted).

Question 7

Reviewability with Statutory Preclusion: Cuozzo Speed

Answer 7

1. The standard here: “clear and convincing” indications that Congress intended to bar review – there is no such “interlocutory” language in the statute.
2. Nevertheless, the decision is limited to the “application and interpretation of statutes related to the Patent Office’s decision to initiate inter partes review.” Constitutional review (due process, etc.) is still available – “shenanigans”

Question 8

Reviewability with Statutory Preclusion: Lindahl

Answer 8

1. Lindahl rule: claims are reviewable – statute only barred review of “factual” disability determinations, not “legal and procedural issues.”

Question 9

Reviewability when Committed to Agency Discretion

Answer 9

i. Test for “committed to agency action”

1. “No law to apply.” Overton Park

Question 10

Reviewability when Committed to Agency Discretion (prosecutorial discretion): Texas v. U.S.

Answer 10

While prosecutorial discretion is protected, granting substantive rights through an affirmative grant of rights (converting ‘unlawful’ aliens to ‘lawful’ aliens) exceeds the scope of prosecution/non-prosecution.

Question 11

Reviewability when Committed to Agency Discretion (prosecutorial discretion): Negotiated settlements/failure to mediate a dispute

Answer 11

1. Association of Irritated Residents v. EPA – EPA’s creative regulatory compliance programs for a select group of animal feeding operations fell within the EPA’s discretion.
2. Agencies can also promulgate rules that allow for certain procedures to escape judicial review.
3. Mach Mining, LLC v. EEOC – when a statute provides that an agency has to do a thing – follow a procedure, include certain facts – the failure to do that thing creates a cause of action.

Question 12

Standing: Statutory Requirements: 702 text

Answer 12

“A person suffering legal wrong because of an agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof.”

Question 13

Standing: Statutory Requirements: APAPSO and Bennett test

Answer 13

“whether the interest sought to be protected by the complainant is arguably within the zone of interests to be regulated by the statute or constitutional guarantee in question”

Endangered Species Act: “any person may commence a civil suit on his own behalf” to enjoin certain alleged violations of the Act by either the Secretary of the Interior or by other public or private actors

Question 14

Standing: Constitutional Requirements: Luhan

Answer 14

(1) Injury in fact
a. concrete and particularized
b. actual or imminent, not conjectural or hypothetical.
(2) Causation
a. injury has to be “fairly … traceable” to the agency’s action, and not to independent action of third party.
(3) Redressability
a. “likely,” as opposed to merely “speculative” that the injury will be “redressed by a favorable decision

Question 15

Standing: Constitutional Requirements: Spokea test for “Concrete and Particularized”

Answer 15

1. Intangible harm can constitute “concrete” injury—but there must be “risk of real harm”
2. Must look to “history” (of common law, e.g. libel and slander law) and “the judgment of Congress”
3. Bare procedural harm not enough