Administrative Law - Fall 2001

§ 11.2.3 Ripeness - 675

Abbot Labs v. Gardner - 675

What did the statute require?

What did the FDA require through a regulation?

Why did Abbot and others want pre-enforcement  judicial review?

What did plaintiffs argue was wrong with the regulation?

Why did the FDA claim the action was not ripe?

What is the first question in a ripeness analysis?

What is the two part test?

Is this a question of law or fact?

Does it depend on agency discretion?

Does defendant have a significant injury?

Did plaintiffs ask for an injunction?

Why did the court say this matters?

Did the United States Supreme Court allow the review to continue?

Toilet Goods v. Gardner - 678

What was the factual issue in this case?

How was the injury requirement different in this case and Abbott?

What is the equitable problem with defendant's complaint?

Notes and Questions - 680

What is the agency cost of allowing pre-enforcement review?

How does this affect the necessary rulemaking record?

How does pre-enforcement review help beneficiaries of the regulation?

What is the finality problem with reviewing non-legislative rules, i.e., guidelines, letter rulings, etc.?

3 - How was this met in the coin-operated laundries case?

5 - Short time limits on review

What if congress sets a 60 day limit on reviewing a rule?

Why do they do this?

JEM Broadcasting does not quite say what the book claims - the court did say that the plaintiff's challenge to the rule was time barred, but it also said that it would have failed because the rule was only procedural and did not require notice and comment rulemaking.

See - N.L.R.B. Union v. Federal Labor Relations Authority, 834 F.2d 191, 56 USLW 2364, 126 L.R.R.M. (BNA) 3290, 266 U.S.App.D.C. 165 D.C.Cir. Dec 04, 1987 (below)

An agency's regulations may be attacked in two ways once the statutory limitations period has expired.

First, a party who possesses standing may challenge regulations directly on the ground that the issuing agency acted in excess of its statutory authority in promulgating them. A challenge of this sort might be raised, for example, by way of defense in an enforcement proceeding

As applied to rules and regulations, the statutory time limit restricting judicial review of [agency] action is applicable *196 **170 only to cut off review directly from the order promulgating a rule. It does not foreclose subsequent examination of a rule where properly brought before this court for review of further [agency] action applying it. For unlike ordinary adjudicative orders, administrative rules and regulations are capable of continuing application; limiting the right of review of the underlying rule would effectively deny many parties ultimately affected by a rule an opportunity to question its validity.

The second method of obtaining judicial review of agency regulations once the limitations period has run is to petition the agency for amendment or rescission of the regulations and then to appeal the agency's decision. We have distinguished three types of challenges on appeal.

(a) A petitioner's contention that a regulation suffers from some procedural infirmity, such as an agency's unjustified refusal to allow affected parties to comment on a rule before issuing it in final form, will not be heard outside of the statutory limitations period. This court held in Natural Resources Defense Council v. NRC, 666 F.2d 595 (D.C.Cir.1981), that "[w]ith respect to routine procedural challenges made by those against whom the agency is not proceeding to enforce the regulation," id. at 603, "[t]he 60 day period for seeking judicial review ... is jurisdictional in nature and may not be enlarged or altered by the courts." Id. at 602. Countenancing such challenges, the court reasoned, would on balance waste administrative resources and unjustifiably impair the reliance interests of those who conformed their conduct to the contested regulation. Hence, the court dismissed as untimely NRDC's procedural objection to the Commission's decision to promulgate final rules without a notice-and-comment period.

(b) A petitioner's claim that a regulation suffers from some substantive deficiency other than the agency's lack of statutory authority to issue that regulation may be brought by petitioning the agency for amendment or rescission and then appealing the denial of that petition. For example, in Gage v. Atomic Energy Commission, 479 F.2d 1214 (D.C.Cir 1973), this court first noted that "petitioners retain the right to initiate rulemaking before the AEC by formally proposing the promulgation of the expanded rules they desire," and then said in a footnote:

Petitioners do have the right to petition the Commission for institution of a rulemaking proceeding under 10 C.F.R. §§ 2.802 and 2.803.... Denial of such a petition would constitute a final order reviewable by this court.

479 F.2d at 1222 & n. 27. An appellate court's review in cases of this kind, however, is limited to the "narrow issues as defined by the denial of the petition for rulemaking," and does not extend to a challenge of the agency's original action in promulgating the disputed rule. Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1217 n. 2 (D.C.Cir.1983) (emphasis added); see also Natural Resources Defense Council v. EPA, 824 F.2d 1146, 1150 (D.C.Cir.1987) (en banc). Furthermore, review of an agency's decision not to promulgate a rule proposed by the petitioner is extremely limited. See WWHT, Inc. v. FCC, 656 F.2d 807, 816-20 (D.C.Cir.1981).

(c) Finally, a petitioner's contention that a regulation should be amended or rescinded because it conflicts with the statute from which its authority derives is reviewable outside of a statutory limitations period. See Natural Resources Defense Council v. NRC, 666 F.2d at 603-04. Judicial review of this sort is often said to proceed--somewhat misleadingly--under the "arbitrary and capricious" standard, see, e.g., id. at 603, but challenges to an agency's statutory authority to issue a given regulation are assessed in a different manner than other allegations of "arbitrary *197 **171 and capricious" agency action once the limitations period has lapsed. We describe the proper approach to such cases in Part II.B. infra.

7 - Judicial Stays

Why is getting an injunction critical to pre-enforcement review?

What are the factors the court should consider in reviewing a request for an injunction in a pre-enforcement challenge case??

§ 11.2.4 Exhaustion of Administrative Remedies - 686

McCarthy v. Madigan - 686

NOTE - This case has been overruled by statute for prisoners - see supplement.  It is still good law in other situations.

What action did the prisoner bring?

What remedy was he seeking?

Was that remedy available from the prison administrative grievance process?

What can the prisoner gain by exhausting his administrative remedies?

How does the prison appeals process burden the inmate?

What are the twin purposes of the exhaustion doctrine and how does it support these purposes?

What is the most important determinate of whether exhaustion applies in the federal system?

Did Congress require exhaustion for prisoner Biven's claims?

Does the prisoner have to exhaust his remedies?

Why does seeking access to medical care increase the chance that the prisoner can skip the appeals process?

Will the record of the appeals process assist the court in making its decision?

What did the concurrence say?

New Jersey Civil Service Ass'n. (NJCSA) v. State - 691

What was being contested in this case?

Was there a final action, which ends the exhaustion problem?

Was the AG's opinion a final agency action?

What made it final?

What is the other ground for skipping exhaustion?

Notes and Questions - 693

1 - Exhaustion of remedies or of litigants?

What is the futility doctrine and how do you satisfy it?

What does this look like from other areas of adlaw?

What are the factors to balance in exhaustion cases?

Exhaustion and Federal law questions

While the federal courts generally require exhaustion, when may the litigant go directly to court?

What if Congress requires exhaustion and the plaintiff is bringing a facial challenge?

7 - Exhaustion as preclusion

How is this like a trial?

How was this modified in Sims v. Apfel, 530 U.S. 103 (2000) - supplement?

1983

Do plaintiffs bringing 1983 claims have to exhaust state administrative proceedings?

Why?

Is this a good policy?

§ 11.2.5 Primary Jurisdiction - 699

Farmers Insurance Exchange v. Superior Court - 699

How do primary jurisdiction and exhaustion differ?

Notes and Questions - 703

1 - What are the standards the court should use to determine who has primary jurisdiction?

May courts defer to agency findings in criminal cases?

5 - Private rights of action

Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 U.S.Pa. Jun 17, 1975

What are the factors relevant in determining whether a private remedy is implicit in a statute not expressly providing one?

End of the course!!!