Reviewability Flashcards
Elements of organizational standing
- A member with an injury in fact
- Orgs purpose is related to CoA
- seeking injunctive relief (not an issue usually)
What are the reviewability requirements
Standing
Jurisdiction
Cause of action
What are the elements of standing:
Constitutional requirements -
1) injury in fact - particularized and nonspeculative
2) Causation - fairly traceable
3) Redressability - are you in the right place
Prudential requirements
1) no generalized grievances - irrelevant under APA
2) cannot litigate the claims of 3P - irrelevant under APA
3) Zone of interests
What are some cases related to standing?
(a) See Lujan v Defenders of Wildlife – goes to causation as well but there was not “injury” because there was no plane ticket bought
(b) But see Laidlaw -A reasonable fear of being harm may also count – i.e. chemical dumping case creating a recreational injury
(c) Also see EPA v Mass – said there is broader standing for States (Mass) when GHG emissions are the failure to regulate and sea level rise is the injury
(d) See also Clapper – a failure of the government agency doing national security things will often not have standing b/c separations of powers issues
What are the types of injuries under standing
(a) Aesthetic injury – like overton park
(b) Recreational injury – can’t hike anymore
(c) economic injury
(d) physical injury
(e) procedural injuries – special case – you need more and less under a procedural injury:
(i) First you need more: More than just proving that the agency did not follow a procedure, need (a)-(d) type injuries
(ii) Second you need less: SC has said that there is a partial exception to the (1) causation) and (2) redressability requirements because it is difficult to prove
How to apply the zone of interests test (702)
A party need not meet the ZOI test if they are a regualted entity (thus suffering a “legal wrong” under 702
You can meet the element of zone of interest if you have proper advocacy because it is construed very properly under the courts, althought there are exceptions
Exceptions to the ZOI test
Express preclusion - RARE and construed narrowly
Implied preclusion - When Congressional intent is “fairly discernable” from the statute - sometimes called the “clear and convincing evidence” test
What is some case law regarding the “fairly discernible” test
ii. Ex1) Consumers suing dairy regulation that about prices between producers and bottlers etc. Consumers not contemplated by statute (Block)
iii. Ex2) Seirra club suing when land being traded with private party and arbitration agreement is the remedy; not precluded because the intent was that arbitration more appropriate in land swap deals
iv. Arguments will always be: this would give [this party] rights that the regulated entities don’t VS “those parties relationship is different than ours”
Suing for agency inaction
has failed to do a discrete item under the § 551 definition of action like making a rule, issuing an order or license, granting relief, or leveling a sanction
(2) that the agency was required by law to do that discrete action
What is the timing doctrine
Timing doctrines
Three doctrines
i) Finality
ii) Exhaustion
iii) Ripeness
Explain the finality timing doctrine
Finality
i) Is the agency action completed
(1) Rule
(a) Is this the consummation of the agency’s involvement
(i) Is it a definitive position (not just tentative)?
(ii) do legal consequences flow from the action? For instance, would violating the action result in a penalty?
(b) Does it affect the legal status of the plaintiff? i.e. Is immediate compliance expected?
(2) Note: agency calling something non-final is not dispositive
What is the exhaustion doctrine
c) Exhaustion
i) Plaintiff has not followed the mandatory internal procedures
(1) Note that optional procedures do not have to be exhausted (like an optional admin appeal—not the same as mandatory appeals)
ii) Exceptions:
(1) Exhausting remedies would be deleterious or would prejudice the defendant (i.e. its an emergency)
(2) The agency can’t fix the problem – i.e. if you exhaust and win you won’t fix the problem you are bringing into the art III ct
(a) DON’T OVERAPPLY THIS – common mistake – this is a con law claim so they cant fix it – if there is a con law due process claim but you can start a process that will stop the same process (even if its not a 4A worded procedure) then you still must exhaust
(3) Bias (rare – needs to be quite large bias)
What is the ripeness timing doctrine
d) Ripeness—is the cause ready for review?
i) Analysis:
(1) Is it ready for review
(2) Whats the balance (see below)
ii) Balancing test: we must balance the hardship that delay would cause the plaintiff against the interference that review now would present to the agency
iii) The affect of stays: A stay will change this balance – no stay more hardship to defendant; yes stay = more hardship to agency
