Term
| What is necessary for a person to obtain judicial review? |
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Definition
1.Jurisdiction
2.Standing
a. Injury in Fact
b. Causation
c. Redressability
3.Cause of Action
a.Ag. Action
b.Jud Rev Precl
c.Zone of Interest
4.Timing
a.Ripeness
b.Exhaustion of Remedies
c.FINALITY |
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Term
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Definition
Issue that never goes away, can be raised sua sponte, and cannot be waived.
APA does NOT grant jurisdiction |
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Term
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Definition
| Chevron Interpretations of statutes emerging from rulemaking, formal adjudication, or other things that have the force of law |
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Term
| GRAY AREA - FOR CHEVRON?- SEE WALTON |
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Definition
| Interpretations of statutes that do not have the force of law (such as some of those emerging from informal adjudication, and nonlegislative rules), fall into a grayer area. |
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Term
| Under Walton, the Court examines |
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Definition
-The centrality of the gap in the statute (seemingly the most important factor),
-the expertise of the agency,
-the amount of attention the agency gave the issue ETC
Chevron-like deference even to policy statements or interpretive rules interpreting statutes. Otherwise, agencies get Skidmore |
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Term
| WHAT IS THE DOCTRINE OF PRIMARY JURISDCITON? |
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Definition
| primary jurisdiction may require that a case between two private parties be sent to an agency for determination of an issue that is within that agency’s purview |
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Term
| CAN AN ASSOCIATION HAVE STANDING? |
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Definition
An association can have standing without itself suffering an injury in fact and despite the prudential limit on third party standing, if three factors are in place.
1. One of the members of the group must have standing to bring the suit; 2
2. The organization’s purpose must be related to the subject of the litigation;&
3.The suit must be for declaratory or injunctive relief rather than damages. |
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Term
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Definition
Injury in fact means that the plaintiff has suffered or is about to suffer a concrete and particularized injury.
This can include economic or physical injuries, but also such things as aesthetic or recreational injuries.
It does not include speculative future injuries, or
Generalized, abstract injuries like violating an interest in seeing the law properly followed or tax dollars well-spent. |
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Term
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Definition
| the injury is fairly traceable to the defendants challenged action. Redressability requires that the relief the plaintiff has requested would likely, not just possibly, redress the injury |
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Term
| WHAT IS THE PARTIAL EXCPETION TO CAUSATION AND REDRESSABILTY? |
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Definition
| Procedural Injuries-If an agency has failed to fulfill a procedural requirement (e.g. not having adequate notice and comment before passing a regulation), |
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Term
| IS A NEXUZ REQUIRED FOR STANDING? |
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Definition
5. Standing does not requires a Nexus between the injury (e.g, the inability to go hiking somewhere) and the issue to be litigated on the merits (e.g. the underlying legality of building a dam). Standing is a pre-merits requirements
-DEPRIVATION FROM ZOO |
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Term
| WHAT IS THE ZONE OF INTEREST? |
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Definition
| It requires that the plaintiff be within the ZOI of the statute that he or she claims has been violated |
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Term
| WHO DOES THE ZONE OF INTEREST TEST APPLY TO? |
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Definition
| That applies in third-party sorts of cases |
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Term
| HOW TO DETERMINE THE ZONE OF INTEREST? |
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Definition
One must examine the particular provision alleged to have been violated in the context of the entire statutory scheme.
need only be shown that Congress intended to deal with the interests that plaintiff is dealing with. AKA, look for “what” and not “who” when gauging the zone of interests.
-Also, it need only be shown that Congress arguably intended to protect the interest in question--this can be construed fairly broadly. |
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Term
| CAN YOU GET JUDICIAL REVIEW FOR FAILURE TO ACT? |
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Definition
review of agency action requires just that--agency action--so it can be hard to get review of a failure to act by the agency.
The Supreme Court has required in cases where plaintiff is challenging the agency’s failure to act that the plaintiff show that the agency
(1) has failed to take a discrete action like making a rule, issuing an order or license, granting relief, or leveling a sanction; and
(2) that the agency was required by law to take that discrete action.
Agency’s mere failure to exercise its discretion in a certain way, therefore, is not reviewable |
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Term
| TWO EXCEPTIONS FROM REVIEWABILTY |
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Definition
The first, (a)(1), is for when the statute precludes reviewability.
The second exception in 5 U.S.C. § 701(a) matters committed to agency discretion, resembles the political question doctrine from constitutional law |
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Term
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Definition
| Preclusion can be explicit or implicit. |
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Term
| WHAT IS EXPRESS PRECLSUION? |
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Definition
. Express preclusion is rare, and generally not total. Indeed, total preclusion of judicial review of an agency’s actions may be unconstitutional, especially when the agency’s action is being challenged on constitutional grounds
-courts will read preclusive language narrowly, because there is a general presumption in favor of reviewability. |
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Term
| WHAT IS IMPLICIT PRECLSUION? |
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Definition
A court will find that Congress has precluded judicial review of agency action only when congressional intent to do so is fairly discernable from the structure of the statute and/or the legislative history.
-Courts may speak of a “clear and convincing evidence” |
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Term
| WHAT IS COMMITTED TO AGENCY DISCRETION |
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Definition
| question here is not whether the agency is given discretion--that would eliminate almost all reviewability. Rather, the issue is whether the matter is wholly within the agency’s discretion, such that there is no basis for a court to act. |
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Term
| COMMITTED TO AGENCY DISCRETION |
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Definition
by asking whether the statute gives the reviewing court any “law to apply
If there is no law to apply--i.e. there are no external standards that constrain the agency and that a court can apply in reviewing the agency’s decision--then the matter is committed solely to agency discretion and is unreviewable |
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Term
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Definition
| finality, exhaustion, and ripeness, which overlap and blend into each other a fair amount. |
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Term
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Definition
asks whether the agency has completed an action, because only completed actions are supposed to be reviewable.
1. First, is the agency action the consummation of the agency’s involvement? That is, is it definitive of the agency’s position?
2. Second, do legal consequences flow from the action? IE.violation=penalty |
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Term
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Definition
| prevents courts from hearing cases where the plaintiff has failed to follow a mandatory internal agency procedure required by statute or rule |
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Term
| EXCEPTIONS TO EXHAUSTION REQ. |
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Definition
1.in which exhaustion would cause unreasonable and prejudicial delay;
2.the agency procedures do not provide for the type of relief sought;
3.or in rare cases where the agency is so biased that it is futile to bother with exhaustion. |
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Term
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Definition
| whether a case is developed enough for a court to consider it. |
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Term
| Ripeness TEST (BALANCE OF HARDSHIPS) |
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Definition
Ripeness requires that the case be ready for judicial resolution--that it concerns either a legal issue, or factual issues that are sufficiently developed. We must also balance the hardship that delay would cause the plaintiff against the interference that immediate review would present to the agency.
The less the net hardship is on plaintiff, the more the case has to be ready for judicial resolution |
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