§ 10.1 Judicial Remedies - 612
§ 10.1.1 Judicial Jurisdiction - 612
Explicit statutory review provisions in the enabling act
Should review be by trial courts or appeals courts?
What do what best?
Which courts usually get rules and final orders?
What usually goes to the trial (district courts?
No explicit statutory review procedures
What jurisdiction do each these laws provide for?
28 USC 1331
28 USC 1361
28 USC 1343
What is the status of federal sovereign immunity for money damages and for
Where can a plaintiff sued under 28 USC 1331?
What controls once 28 USC 1331 is invoked?
Removal to Federal Court
City of Chicago v. International College of Surgeons (1997) - 615
What sort of dispute was this?
What happened before the Chicago Landmarks Commission?
Where did the owner then turn?
What did the city?
What type of legal claim must be shown to remove a case to federal court?
Why might the City want to remove the case to federal court?
Why did Stevens and Ginsburg dissent?
§ 10.1.2 Cause of Action and Remedy - 617
§ 10.1.2a Injunction and Declaratory Judgment - 617
What is an injunction and what do you usually have to show to get one?
Why are injunctions and declaratory judgments the same for agencies?
What do you call it if you are trying to make the agency do something?
Why is making the agency do something much more politically complicated?
Is there a right to an injunction?
What must the court balance when hearing a request for an injunction?
§ 10.1.2b Mandamus - 618
What is the difference between a discretionary and a ministerial act?
Why does this matter for both injunctions and tort claims act cases?
What was the mandamus issue in Marbury v. Madison?
Traditionally which courts was mandamus limited to?
Has this changed?
Since courts are still reluctant to grant injunctions, what is the best way
for plaintiff to force an agency to act?
§ 10.1.2c Certiorari - 620
What is a writ of certiorari?
Is this used to review federal agency action?
§ 10.1.2d Other Writs - 621
What is a writ of habeas corpus?
When is it important in agency actions?
How might it be very important for bioterrorism and homeland security?
Is there a right to bail in administrative detentions?
Why or why not?
§ 10.2 Damage Actions as a Form of Judicial Review - 621
§ 10.2.1 Tort Liability of Government - 622
§ 10.2.1a The Federal Tort Claims Act - 622
When is the government liable for intentional torts?
Which intentional torts is the government not liable for?
What is the big exception?
Remember Berkovitz v. US
§ 10.2.1b State and Local Government Liability - 623
What state law allows states to be sued for torts?
What federal law allows state actors to be sued for violations of the constitution?
What does the 11th Amendment prohibit?
What about local government?
Does the 11 amendment allow injunctions?
Can you sue state officials in their individual capacity?
§ 10.2.2 Tort Liability of Officials - 624
What happens if you sue federal officials for common law torts?
What is the exception to this rule?
§ 10.2.2a Bases of Liability - 624
What is the jurisdictional requirement for a 42 USC 1983 action?
What is a Bivens Action?
§ 10.2.2b Immunity from Liability - 625
Why is immunity critical? (Scheur v. Rhodes)
Absolute v. qualified immunity
Butz v. Economou, 438 U.S. 478 (1974)
What was Economou's claim?
What do prosecutors and adjudicators get?
What do other federal officials get?
What state official immunity does this resemble?
What does the president and his aids get?
What is the test for qualified immunity?
When can there be liability for constitutional violations?
Can you always get damages if you can get an injunction for a constitutional
§ 10.3 Recovery of Fees - 627
What is the American rule on fees?
Why are fee recovery statutes critical to citizen involvement?
Notes and Questions - 627
Why did the plaintiffs in Western States Petroleum Association v. EPA not
qualify for attorney's fees, even though their claim against the EPA's regulation
What is the Equal Access to Justice Act
Should it be amended to allow the government to collect fees?
§ 10.4 Preclusion of Judicial Review - 632
Bowen v. Michigan Academy of Family Physicians - 632
What type of regulations were at issue in this case?
How is Medicaid paid?
If there is a dispute over the amount to be paid, who conducts the hearing?
Is there judicial review of claim amounts?
What did the court say could be reviewed?
Why was the court reticent to find an implied ban on all review?
Notes and Questions - 635
How is US v. Erika different from Bowen?
Bowen was modified by Shalala v. Illinois Council on Long Term Care, Inc.,
529 U.S. 1 (2000) which found that providers did have to exhaust their administrative
review channels before going to court
What did the court allow to be reviewed in McNary v. Haitian Refuge Center
How has immigration law been changed by Immigration and Naturalization
Service v. St. Cyr, 121 S.Ct. 2271 (2001) from the supplement?
Why did the court rule this way? Is it saying that Congress cannot preclude
What inconsistency does Scalia's dissent focus on?
Can Congress limit the time for contesting regulations?
§ 10.5 Commitment to Agency Discretion - 638
Heckler v. Chaney - 638
Why did the prisoner bring this action?
What did the lower court rule?
Could have just said that this is the wrong issue - the FDA does not regulate
How does 701 control this case?
Did the court find any clear legislative or regulatory requirements for review
in this situation?
How does this drive the court's ruling?
When can a litigant force action?
Was there a simpler ground for dismissing this case?
Notes and Questions - 643
The expanding circle
The court continues to expand the reach of 701(a)(2)
Why is this good policy in the following cases?
The president's decision to accept or reject a list of base closings
An agency's decision to quit funding a health program out of lump sum appropriations
An agency's refusal to reconsider its own decisions
The CIA director's decision to fire an employee when the statute says he can
do so whenever such termination is necessary or advisable in the interests of
the united states. (the decision was reviewable on constitutional grounds)
No law to apply
Why is the problem of no law to apply the real reason why the courts do not
review discretionary actions?
Why does this make it nearly impossible to review agency's failures to act?
4 What are some arguments that can be used to attack an agency's failure to
act when the agency claims it is a discretionary action?
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