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Complete Preclusion: Smallpox
Emergency Personnel Protection Act 2003
(2) JUDICIAL AND ADMINISTRATIVE REVIEW- No
court of the United States, or of any State, District,
territory or possession thereof, shall have subject
matter jurisdiction to review, whether by
mandamus or otherwise, any action by the
Secretary under this section. No officer or
employee of the United States shall review any
action by the Secretary under this section (unless
the President specifically directs otherwise)
Statutory Preclusion of Judicial Review
Congress has the power to limit judicial review of
agency actions
Subject to constitutional limits
What if Congress is silent on the availability of
judicial review in a particular statute?
Does "Committed to agency discretion" mean that
the action is not subject to judicial review?
When is Review Appropriate?
(Prelude to the later ripeness discussion)
Should the plaintiff be able to get review of an
agency regulation before the agency takes
enforcement action?
What is a facial review of a statute?
What are the problems with a facial review?
How are these similar to the problems of pre-
enforcement review?
"As Applied" (Post-Enforcement) Review
Why does the agency prefer post-enforcement
review?
What happens with compliance?
What additional information does the court get
when it requires the plaintiff to wait until there is
enforcement?
What if the penalties are so Draconian that no
one will risk enforcement?
Does Committed To Agency Discretion By
Law Mean No Judicial Review?
5 U.S.C. § 701(a)(2)
(a) This chapter applies, according to the provisions thereof, except to the extent that - (2) agency action is committed to agency discretion by law.
This is related to the political question doctrine
The courts recognize that agencies are charged with making policy under the direction of the legislature and the executive branches The proper review of a policy choice is through the ballot box
Citizens to Preserve Overton Park v.
Volpe , 401 U.S. 402 (1971)
Congress said no federal money to build roads in parks if there was a "feasible and prudent" alternative The Secretary authorizes a road in a park and tells plaintiffs that it is within his discretion and cannot be reviewed by the courts Does the Court have a standard to review this decision, or is it a pure policy choice?
The court found that "feasible and prudent" provided adequate law to guide judicial review Committed to agency discretion was held to be very narrow, unless specified by statute
Heckler v. Chaney , 470 U.S. 821 (1985) -
Lethal Injection Case
The FDA Act directs the agency to require that drugs be approved for a specific use before they can be sold in interstate commerce The agency does not police the use of drugs for unapproved purposes, once they are approved for at least one use
The court rejected a challenge to this, say this was classic prosecutorial discretion, which an agency did not have to justify. Later cases question whether the FDA has the authority to regulate post-sale use.
Webster v. Doe , 486 U.S. 592 (1988)
National Security Act allows CIA employees to be
fired without due process or judicial review
Court says this is within congressional power,
especially for national security
Lead to controversy with Homeland Security Act
Court says that the plaintiff's constitutional law claim
can be reviewed because no agency is above the
constitution
Dissent says this makes no sense because it
undermines the agency discretion
What is Final Agency Action?
Is There an Agency Action to Contest?
Section 702 of the APA allows claims if someone is harmed by an agency action
551 defines agency action:
'agency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act;
Since agencies have broad discretion to not act, it is hard to force an agency to do something that is not specifically required by statute or regulation.
For example, general claims that the EPA is not protecting the environment do not work
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
National Automatic Laundry and Cleaning Council v. Shultz , 443 F.2d 689 (D.C. Cir. 1971)
Agency opinion letters - are they just restating the law, or do they change substantive rights? Who are they final for?
This was to an association explaining how the agency would interpret a new law Detailed explanation From the secretary's office Not based on individualized facts
In this case, the court found that the opinion was sufficiently specific and from a high enough level to affect the plaintiff's rights.
Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept. v. Dole , 948 F.2d 953 (5th Cir. 1991)
This is a classic question - even if an opinion is final
action as to the requestor, does it apply to others?
The opinion was to an individual party, based on that
party's specific facts. These are like IRS letter rulings and OIG opinions
The plaintiff was a third party who wanted to challenge
the opinion as it would be applied to it.
The court found that this was not a final agency action, at
least as to other parties.
Franklin v. Massachusetts , 505 U.S. 788
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?
