• Contesting Agency Conduct Part II: Am I Eligible to Bring a Claim Against an Agency in Federal Court?

    Constitutional Barriers

    One of the critical components to bringing a claim against an agency is having constitutional standing. Article III of the constitution gives court’s jurisdiction to resolve the cases and controversies brought before it. This has been interpreted to mean that in order to bring a case, there must be a controversy and that the court must have the ability to resolve it. This has lead to a three part analysis where a putative plaintiff must have 1) an injury, 2) caused by the defendant, 3) that is redressable by the court. This issue is applicable to all kinds of actions, but for the reasons below, is particularly relevant where the defendant party is a government agency.


    An injury can be any type of harm cognizable to the court, subject to some restrictions. The injury must be concrete (not speculative or remote), particularized and individual (not a generalized grievance), and actually imminent (not conjectural or hypothetical). A concrete injury is an in-fact injury to an interest and not speculative or remote. A type of speculative injury is psychic or associational injury. The standard for a concrete injury is not actually very high, but is present nonetheless. For instance, being emotionally concerned about deforestation is a psychic injury, but deforestation ruining the aesthetic view from your window is a concrete injury. A remote injury is one that is geographic or otherwise distant. Deforestation in a location you do not visit nor intend to visit is a remote injury.

    Particularized injuries are harms that occur to you as an individual. Conduct that harms the population at large is not actionable in court, and can only be remedied through the political process. Such harms are called generalized grievances, and an example might be a claim that taxes are too high and thus are injuring you.

    Actual and imminent harms are those injuries that have occurred or are about to occur with reasonable certainty. Harms that are merely hypothetically likely to occur, or are merely conjectural do not rise to constitutional injury. For instance, if an agency is about to build a dam that will put your house under water is an imminent harm. If the complaint is that the same dam may cause an increase in fishing tourism in the future and thus harm you because the prices for local fish might go up, that is likely only a hypothetical and conjectural injury.

    Causation & Redressability

    Causation and redressability are tightly linked concepts. Causation is when the harm is fairly traceable to the conduct of the defendant. For instance, if an agency wrongly denies you a permit then that is harm caused by the defendant; if an agency constructs a dam that will flood your house, that also is harm traceable to the conduct of the defendant. Redressability is the question of whether the court can actually cure the harm, and that the likelihood is more than speculative. To continue the above example, a court can compel a permit to be issued or enjoin the construction of the dam.

    These requirements can become difficult where the redressability hinges on agency regulation of third parties. If the actual harm arises from the conduct of a third party, and that conduct only stems in part due to agency action, causation and redressability are more difficult to make out. Where it is just as plausible that the third party would act in the manner causing the harm without the agency action, courts are reluctant to find causation and thus redressability becomes problematic. If the harm would continue absent the agency action, then enjoining the agency action would not redress the plaintiff’s injuries. This analysis is complex and heavily fact sensitive, and is generally a subject of litigation. There are many factors and considerations that go into causation and redressability which are heavily influenced by the specific issues at hand. Generally speaking, the more actors and circumstances between the agency and the actual harm, the less likely a court will find causation and redressability.

    Prudential Barriers

    On top of the constitutional hurdles to standing there are also court imposed prudential barriers that limit the claims that may be brought before the court. In administrative law, the two most relevant barriers are statutory standing and associational standing. Statutory standing requires that the plaintiff be a person contemplated to be protected by the statute being administered by the agency. Associational standing is the doctrine that limits when groups and associations are allowed to sue on behalf of their members.

    Statutory standing can be found in either an express grant by congress or implied by the zone of interests protected by the statute. Express grants of standing are fairly common, and most statutes have a provision providing for a citizen to sue to protect the rights provided by the statute. Sometimes a particular class of plaintiffs is not explicitly mentioned, or there is no express grant of standing. In such circumstances, a court may find standing where the plaintiff’s interests are arguably protected by the statutory provisions and the agency action affects those interests. Generally speaking, this is not a difficult standard to meet and courts frequently construe statutes very broadly as to allow citizen suits. Statutory standing is only denied when the plaintiff’s interests are so marginally related to or inconsistent with the purpose implicit within the statute that it cannot be reasonably presumed that congress intended to permit the suit.

    Associational standing allows a group or organization to sue on behalf of their members. In order for the association to sue there are three factors that must be met. First, there must be one member who meets all of the constitutional barriers for standing—injury, causation, and redressability. Second, the suit must be germane to the association’s purpose; an association dedicated to environmental protection will be unable to bring a suit disputing securities regulation. Third, the injury must be redressable in absence of any of the association’s members; this factor generally limits associational suits to injunctive relief—there is no guarantee that an award of money damages will reach all affected members.

    Timing of the Suit

    Courts are reluctant to hear cases that have not exhausted the administrative remedies available. The doctrine of exhaustion generally requires that the plaintiff pursue all available recourse before bringing their claim in federal court. Exhaustion is not required when, at the discretion of the court, the interests of the individual outweigh the countervailing institutional interests that favor exhaustion.

    Individual interests include whether exhausting administrative remedies will cause irreparable harm, where the administrative remedies are inadequate to grant the relief sought or the challenge is to the procedures themselves, and whether the administrative body has shown bias or otherwise predetermined the issue before it. The countervailing institutional interests include encouraging internal resolution, preventing the undermining of agency authority, respect for agency authority to carry out its purpose and administer its statute, and whether the agency can bring its special expertise to bear on the issue.
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