Bringing the Federal Test Case -- a checklist


 A civil litigator bringing a Federal test case naturally focuses on the ordinary aspects of a civil case--parties, merits, and remedies. In a Federal test case, such a focus can be dangerous.

        There can be few guarantees in litigation. It can be guaranteed, however, that an attorney defending a Federal agency in a test case will, almost 100% of the time, bring threshold attack based on standing or ripeness. These defenses have a high probability of knocking out your suit at the 12(b) stage. In some disfavored areas of the law, including firearms law, the probability approaches 95%. You must devote considerable time and effort to preparing and thinking through these issues--perhaps as much time as you devote to the merits.

         A.      Standing To Sue

                  1. Major case: Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Lujan is heavily fact-bound (plaintiffs sued wrong agency, and their affidavits were badly flawed) but discussion is heavily cited.

                   2. Aspects

style="margin-left:1.0in; text-indent:-1.0in;">                           a.       Constitutional aspects: parties must have a strong ���personal stake��� in the outcome sufficient to ���assure the concrete adverseness which sharpens the presentation of issues.��� Baker v. Carr, 369 U.S. 186, 204 (1962). Lujan indicates ���three irreducible components���--

         (i) injury in fact: invasion of protected interest which is both concrete and actual or imminent, not conjectural;

         (ii) causation: injury must be ���fairly traceable��� to action of defendant;

         (iii) redressability: it must be likely, not merely possible, that granting relief will redress the injury (i.e., injury is not due to acts of third parties outside defendant���s actual control).

         Of the three, the first is most vital. The second two are discussed in Lujan primarily because there the plaintiffs sued the wrong defendant. To mount an Endangered Species Act challenge to building a dam being overseas without ESA analysis, they sued, not the agencies building the dam, but US Fish and Wildlife Service, which would have performed the analysis if the funding agencies had asked. No injunction against USFWS would have redressed the other agencies��� refusals.

         Note that constitutional aspects are straight ���case and controversy,��� can never be waived, and can be raised by court sua sponte, even on appeal.

                  b.      Prudential aspects: limits on invocation of rights of third parties, violation of which causes harm in fact to plaintiff, etc.. Fact that plaintiff is harmed by act may not suffice where invasion is of rights of third party, even tho harm falls to plaintiff. Also requirement that plaintiff���s interests be within the ���zone of interests��� meant to be protected by the statute. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970); Clarke v. Securities Industry Ass'n, 479 U.S. 388 (1987). Courts have some leeway with prudential aspects, and a government failure to raise the defense may waive it on appeal, unlike a constitutional limit, which may be raised at any time.

                   3. Standard Deployment

                  a.       Core standard: Plaintiff must ���demonstrate a realistic danger of sustaining a direct injury as a result of the statute���s operation,��� otherwise phrased as ���a credible threat of prosecution.���  Babbit v. Farm Workers, 442 U.S. 289, 298 (1979).

                  b.      Beyond this generality, caselaw is all over the place. See Pennell v. City of San Jose, 485 U.S. 1 (1988) (standing found despite failure to plead statute might be applied to plaintiffs; court finds it is logical to assume it would be); Poe v. Ullman, 367 US 497 (1961) (Plaintiff must show immediate danger of sustaining direct injury as result of enforcement); Steffel v. Thompson, 415 U.S. 452 (1974) (generally, no one has standing unless prosecuted or actually threatened; suit allowed here only because Plaintiff had been prosecuted in past and firmly warned to cease or be charged); Epperson v. Arkansas, 393 U.S. 97, 101-02 (1968) (Court notes no enforcement of law in decades, and no likelihood of enforcement in future, but decides case anyway); Planned Parenthood of Mo. v. Danforth, 428 U.S. 52, 62 (1976) (plaintiffs ���should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.���).

                           Likewise, there is caselaw suggesting that plaintiffs don���t have standing because they have no injury not shared by public in general, and caselaw suggesting that this is not the test. FEC v. Akins, 118 S. Ct. 1777, 1786 (1998) ("where a harm is concrete, though widely shared, the Court has found 'injury in fact.' "); United States v.  SCRAP, 412 U.S. 669, 688 (1973) ("To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody.")

                           Government loves to cite older cases indicating that, even when a business is entirely ruined by regulation, it cannot challenge without enforcement, and to invoke Stewart���s concurrence in Steffel, stating that cases of genuine threat will be ���exceedingly rare.���

                  c.   Degree of threat of enforcement required. Even more unclear than general requirement.

                           At the Supreme Court level, it seems clear enough. A party has standing if they desire to act, and are restrained by a statute or regulation that is arguably unconstitutional. Major cases:

                           Epperson v. Arkansas upheld a challenge to a statute prohibiting the teaching of evolution, a statute that had been on the books for forty years without a prosecution.  ���It is possible that the statute is presently more of a curiosity than a vital fact of life in these States,��� the Court noted. ���Nevertheless, the present case was brought, the appeal as of right is properly here, and it is our duty to decide the issues presented.��� 393 U.S. 97, 102 (1968).

                           Doe v. Bolton involved a challenge to an abortion statute, and the Court again found plaintiffs had standing. It was sufficient that the statute ���directly operate[d]��� on the physician-plaintiffs, posing a ���sufficiently direct threat of personal detriment,��� despite the absence of prosecution or threat to prosecute. 410 U.S. 179, 188 (1973). Poe was distinguished, since the statute at issue here was ���recent and not moribund.���

                           Epperson v. Arkansas upheld a challenge to a statute prohibiting the teaching of evolution, a statute that had been on the books for forty years without a prosecution.  ���It is possible that the statute is presently more of a curiosity than a vital fact of life in these States,��� the Court noted. ���Nevertheless, the present case was brought, the appeal as of right is properly here, and it is our duty to decide the issues presented.��� 393 U.S. 97, 102 (1968).

           By the end of this period, Supreme Court rulings that bothered to mention ���credible threat��� treated such a threat as a rebuttable presumption. Babbitt v. United Farm Workers upheld standing, based on a criminal statute for which the ���State has not disavowed any intention of invoking the criminal penalty provision�Ķ��� 442 U.S. 289, 298-99 (1979). Virginia v. American Booksellers Ass���n, did the same, since ���[t]he State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise.��� 484 U.S. 383, 392.

          From the Supreme Court level, things seem uncomplicated. In the Circuits, it is a different story. In several Circuits it appears that the standard applied varies with how much the court likes your cause of action. For favored causes, the standard is that of the Supreme Court: injury in fact requires only that a criminal statute inhibits conduct that is arguably protected by the Constitution. For disfavored causes (including gun rights) the standard is more like "injury in fact requires a personal one on one threat to prosecute you; even a general statement that the law will be enforced is not enough." For a detailed discussion, see my article in Thomas Jefferson Law Review.

                  4. Counters to Standing Attacks. It���s always wise to protect yourself, just in case the court takes a restrictive view of standing.

 a. Inviting a threat. Have a particularly aggressive plaintiff try to coax a ���will��� be prosecuted rather than ���could be.��� Be prepared to demonstrate that threat has had effect on plaintiff. Remember that courts may be skeptical of your claim.

b.  Apply for a permit, or something similar, and structure your case as a challenge to denial of the permit. It worked brilliantly in the Heller case, letting the Circuit panel distinguish the prior "for gun cases, you must prove a personal threat to prosecute" case law.

c.      Invent and improvise. Caselaw here is continually developing and can be used to your advantage. Novel arguments can win.

                                    i.      In Navegar v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997), some manufacturer plaintiffs were found to have standing to challenge the federal assault gun ban because their guns were specifically named as banned. The court reasoned that (a) publicity hype about the law indicated it would be applied somehow, and (2) if law was going to be applied to anyone, it would be applied to the named guns.

                                    ii.        In NRA v. Magaw , 132 F.3d 272, 284 (6th Cir. 1997), court allowed standing to all licensed gun dealers, on reasoning that FFLs were a tightly regulated industry, subject to record-keeping requirements, inspections, etc., and thus had standing where an ordinary gun owner would not.

          4. Organizational standing -- ���the poor man���s class action.���  An organization has standing to advance the interests of its members if (1) the members themselves have harm in fact, (2) the interests advanced are germane to the organization���s purpose, and (3) neither the claim nor the remedy requires individual participation. Hunt v. Washington State Apple Advertising Comm���n, 432 U.S. 333, 343 (1977); Automobile Workers v. Brock, 477 U.S. 274, 283 (1986).

                                    1.        First requirement is the most important--at least some members must have harm in fact as individuals. If you are challenging a number of regulatory acts, make sure to be able to prove that some of your members are affected by each (i.e. if each park has different regulations, and you want to challenge them in ten parks, try to line up plaintiffs who have visited each of the ten).

                                    2.        Germaneness is usually easily met, unless an organization is suing over something utterly unrelated to its purposes.

                                    3.        Individual participation is met in the usual test case. This element refers to, for example, cases seeking actual damages, where individual participation would be essential.

                                   Major case illustrating second two categories: Humane Soc'y of the United States v. Hodel, 840 F.2d 45 (D.C. Cir. 1988). Plaintiff used to block hunting on National Wildlife Refuges. Government responded that (a) the alleged harm in fact to its members consisted of loss of opportunity to do outdoors things and without being shocked at sight of hunting but (b) guaranteeing opportunities of humans to do outdoor things was not a purpose of Humane Society. DC Circuit held that it was ���germane,��� suggesting that the term implied ���pertinent��� or ���connected,��� rather than ���central to the purpose of.���  It also suggest that there might be a  ���critical mass of members���  who must be affected, but seems to suggest that anything much more than one meets this test. n. 21. The challenge was, however, cut down from 300+ refuges to three, because plaintiff only submitted affidavits from members attesting to visiting three refuges.

         5. Aesthetic Standing. This is primarily used in environmental challenges. The theory is that harm to a visitor���s aesthetics from what the visitor sees or experiences gives ���harm in fact.��� It is thus generally used to challenge what an agency has allowed, rather than what it has forbidden.

                  The seminal case here is United States v. SCRAP, 412 U.S. 669 (1973). See also Japan Whaling Ass���n v. American Cetacean Soc., 478 U.S. 221, 231 n.4 (1986) (Plaintiffs ���undoubtedly have alleged a sufficient ���injury in fact��� in that the whale watching and studying of their members will be adversely affected....���).

                  Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000), illustrates the breadth and nature of the aesthetic standing principle. Plaintiffs alleged that their enjoyment of an outdoors area was impaired by fear that a river in it was polluted with toxic substances.  Defendant countered with scientific evidence (which the trial court accepted) that it was not polluted. The Supreme Court found that plaintiffs had standing nonetheless: what gave them standing was their fear, and consequent impairment of use, not the actual existence of any pollutants.

          I suggest that fear of crime could qualify as aesthetic standing.

         7. Question of economic standing, where a seller contends that regulations on the buyer will impair his business. This is a truly murky area of the law. See e.g., Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 422-23 (1942); National Cottonseed Products Ass'n v. Brock,  825 F.2d 482 (D.C. Cir. 1987), cert. denied, 485 U.S. 1020 (1988); FAIC Securities, Inc. v. United States, 768 F.2d 352 (D.C. Cir. 1985). See generally  Monaghan, Third Party Standing, 84 Colum. L. Rev. 277, 299 (1984).

          8.  Plaintiff���s tactical notes:

              a. Early preparation is essential. Line up affidavits.

              b.      If organization is plaintiff, line up affidavits from its members.

           c.   Line up a fair number of plaintiffs, with differing situations.  In District of Columbia v. Heller,this saved the day. The challenge was to a DC handgun ban, which took a specialform. DC had had a handgun registration requirement for decades. Its ban tookthe form of banning registrations after a certain date. Five plaintiffsobjected to the ban ��� and lost on a standing standard similar to that used bythe 9th Circuit (actual, personal, threat required). One, however,had undertaken the entirely useless act of applying to register and beingturned down. He survived the standing attack.

                        Another example: Friends Of The Earth, Inc. v. Laidlaw, 528 U.S. 167 (2000), distinguished Lujan largely on the basis that FoE had submitted detailed affidavits of impact on its members.

                               d. Be prepared to ���plead and prove��� standing if necessary at trial. Cases involving it have generally gone off on motions to dismiss or motions for summary judgment, but Lujan indicates you are required to prove it at trial as well. This may involve calling witnesses to testify as to harm in fact, or as to elements of organizational standing (i.e., to introduce group���s articles of incorp. and attest to its purposes). This may be good protection in any event, lest an appeals court raise standing sua sponte.

                                     e. I recommend breaking case out into a good number of counts, so that each theory is separately set out--and if the degree of standing of the plaintiffs diverge in any way, perhaps breaking those into separate counts. If court is to find that you have standing or ripeness as to some but not all of your case, it will be more likely to break it down by counts; if two theories are stated in a single count, it may lump them together and if either falls, strike the entire count.


         9. Beware the 12(b)(1) ambush! This is a standard defense response, and relies on your assumption that its 12(b) motion to dismiss is just like the 12(b) motions you���ve seen before and can be fought in the same way.

                  i.       Government opens with Rule 12 motion, emphasizing 12(b)(6) (failure to state a claim) but mentioning 12(b)(1) (lack of jurisdiction), with perhaps a Rule 56 motion for summary judgment thrown in.

                  ii.      You oppose, emphasizing 12(b)(6), pointing out that pleadings are to be broadly construed and you have alleged more than enough, and Rule 56, pointing out disputed facts.

                  iii.     In reply, Government shifts to 12(b)(1),  governing jurisdictional challenges, where a party is not permitted to rely on pleadings, there is no presumption of truth to the same, and court can resolve disputed facts. You���re caught bearing the burden of proof and with no (or few) affidavits.

                  iv.     Safest response: oppose as if motion for summary judgment, but with even greater emphasis on affidavits. Structure affidavits as if purpose was to win the factual point on the merits, rather than merely suggest facts are disputable. Go over them carefully to leave no gaps. Remember under 12(b)(1) you bear the factual burden: the defense will home in on any gaps or ambiguities.

                  v.      Backup: while 12(b)(1) burden of proof is on you, burden of going forward (introducing evidence questioning matter) is on movant. Ohio Nat���l Life Insurance Co. v. United States, 922 F.2d 320, 324 (6th Cir. 1990); Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1994). It is arguable that the government bears the burden of establishing, for instance, that no one has threatened plaintiff with prosecution. In the absence of the movant assuming that burden, the motion is evaluated under the standards of Rule 12(b)(6), with the unchallenged pleadings being taken as true. Gordon v. Nat���l Youth Work Alliance, 675 F.2d 356, 361 (D.C. Cir. 1982); Seaboard Finance Co. v. Martin, 244 F.2d 329, 331 (5th Cir. 1957). Government���s affidavits will generally be very thin on a motion of this type--in fact, they are often irrelevant. But do not count on a court, interested in clearing its docket, to give you full benefit of this doctrine.

         B.      Ripeness

                  1.      Essential trilogy: Abbott Labs v. Gardner, 387 US 136 (1967); Toilet Goods Ass���n v. Gardner, 387 US 158 (1967) and Gardner v. Toilet Goods Ass���n, 387 US 187 (1967) lay out details of doctrine in three contexts.  Core of doctrine is requirement that the issues must be sufficiently clear and sharp for proper adjudication. To some extent this overlaps with standing, and to some extent it sets forth a completely independent doctrine. A claim may be ripe, but plaintiff not the party with standing to raise it; or plaintiff may have standing, but the claim be unripe because issues are still too amorphous.

                  2.      Ripeness has both jurisdictional and prudential components.  Portman v. County of Santa Clara, 995 F.2d 898, 902-03 (9th Cir. 1993). Both normally come into play, but a prudential component will often be waived if not raised as defense.  

                           a.       Jurisdictional components. The jurisdictional component is met when the dispute presents ���a real, substantial controversy between parties having adverse legal interests,��� as opposed to a ���hypothetical or abstract��� conflict. Railway Mail Ass���n v. Corsi, 326 U.S. 88, 93 (1945).  Obviously, there is substantial overlap with standing here.

                           b.      Prudential components. The prudential aspects of ripeness involve balancing the interest of Appellant, and those similarly placed, in settling the issue against the possibility of further refinement of the issues. Pacific Gas & Elec. v. State Energy Comm���n, 461 U.S. 190, 201 (1983); Hotel and Restaurant Workers��� Union v. Smith, 846 F.2d 1499, 1505 (D.C. Cir. 1988). The court normally balances the risk to Plaintiff from waiting (chilling effects) or complying (costs, etc.) against the ���institutional��� (i.e., judicial) benefits of waiting(e.g., that meaning of an ambiguous statute or regulation will be clarified by administrative appeals or just plain experience). 

         Essentially, ripeness requires balancing of"(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented." Ohio Forestry Ass'n, Inc. v. Sierra Club, 118 S. Ct. 1665, 1670 (1998).

                  3. Practical matters.

                           a.       A challenge to a statute���s face is far more likely to be ripe than one to the statute as applied.  Where face of statute is at issue, there is lessened institutional interest in delay to see if matters can be clarified, and the balance has only one scale. City of Houston v. HUD, 24 F.3d 1421, 1431 n.9 (D.C. Cir. 1994); Mississippi Valley Gas Co. v. F.E.R.C., 68 F.3d 503, 509 n.4 (D.C. Cir. 1995).

                           b.      Note, with regard ���facial��� challenges, that it is easy to confuse two radically different concepts. The first is an argument that the statute has no valid applications at all. The second is an argument (generally allowed only in first amendment cases) that plaintiff���s actual conduct is proscribed, and permissibly so, but the statute is overbroad--that is, as applied to someone else, doing something else, would be impermissible. See generally Michael Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994). Government will try to confute the two, cite cases involving the second, and argue they apply only to first amendment questions.

                           c.       Issues of fact, and especially matters hinging on ambiguity (void for vagueness) are especially vulnerable to a ripeness attack. Government claim is that the passage of time, or your seeking clarification from the agency, may focus and narrow fact issues. 

                  4. Plaintiff���s tactical notes.

                            a. Measures to ripen.

                       Seek agency opinion if at all possible. Hard to argue issue is unripe where you want to do X and agency says X is illegal; easy to argue it if you want to do X and merely speculate that agency would say X is illegal. Remember that ripeness will be raised by a Rule 12 motion before government files answer, so you can���t expect the conflict between complaint and answer to underscore the controversy.

                           If there is any way to seek a permit, or opinion, on what your client proposes to do, seek it.

                           b. Avoid arguing from hypothetical situations.

                                    If arguing over outlawing of an item, make sure plaintiff has it, has contract to buy it, has firm plans to make it, etc.. Anything is better than simple claim he ���wants��� an item of some general type.

                           c. Outline argument that delay will prejudice your client.

                                    Think out specific prejudice and proof in advance. An itemized list of expenses incurred, business foregone, etc. will beat any general avowals of harm.


         A.      Organizational Standing: The Poor Man���s Class Action.

          A true class action is expensive, complicated, and sometimes risky. Organizational standing gives a way to achieve most of the benefit of a class action, with little added work.

         As noted above, an organization has standing if (a) its members have harm in fact (which you will have to prove for your individual plaintiffs anyway) (b) the issue is germane to its purpose (which it almost always will be), and (c) participation of each individual member is not necessary (i.e., you aren���t seeking damages).

         The result can be an injunction protecting, not just the individual plaintiffs, but all members of the organizations. If the organizations are at all large, the effect is the same as a class action: enforcement is halted across the board, since the agency can hardly stop to determine a person���s membership status before making an arrest, and even a non-member charged with the offense would likely have a defense if he ran down and obtained membership. You thus achieve the benefits of class action, at the cost of adding a few parties and adding a few paragraphs to your motion on standing.

         One note: while I call this a ���poor man���s class action,��� it is emphatically not a class action, does not need to be designated as such, and does not need special treatment under Rule 23. The entire idea to sidestep these burdens while gaining the benefits.

         B.      Choice of defendants:

         US and/or officials are normal choice. Note that under the rules when an official sued in his official capacity dies or resigns, his successor automatically replaces him as the party. No amendment of pleadings is necessary; you simply change the caption on the next document you file.

         Most agencies have no statutory ���sue and be sued��� capacity; it is not a juridical person (except for FOIA purposes). Legally, it cannot be sued, any more than you could sue ���the marketing department of General Motors.��� Suit must thus be either against the United States or against the agency���s director (for an injunction)         

         C.      Special requirements on service of process.

                           Personal service on local U.S. Attorney

                           Certified mail to AG and to the agency, if one is named.

                           Government generally has 60 days to answer, and will use all of it. For some reason, Justice agonizes over giving a precise and detailed answer, and every sentence will be negotiated between Justice and the agency.

           D. Special requirements of notice.

                           If the unconstitutionality of a State law is at issue, and the State is not already a party (i.e., you are asserting the claim against someone else), 28 USC ��2403 and Local Rule Civ. 24 require notice to the Court, which will notify the State and give it an opportunity to defend.

                           In State court, there are rather elaborate requirements for notifying the State that a claim of unconstitutionality has been made. A.R.S. ��12-1841.


         A.      Nature of challenge 

                  1.      More closely resembles appeal than trial. Rather than witnesses being called to verify that decision was reasonable, the face of the decision is tested against the written ���administrative record.���

                  2.      ���Arbitrary and capricious��� standard isn���t the death knell.

                           a.       Despite its working, the standard is not ���agency action is upheld unless totally irrational.��� The standard is violated if agency fails to consider factors that Congress meant it to consider, considers factors that it was not meant to consider, makes an irrational judgment, or entirely fails to consider important aspect of the problem. Motor Vehicle Mfrs Assn. v. State Farm Mutual, 463 U.S. 29, 43 (1983). See Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962).

                           b.      Agency judgments must be reflected in a written decision; it cannot generally supplement them with affidavits or testimony or speculation as to how it would have dealt with a concern, or show by live testimony that its conduct was not arbitrary and capricious. Securities and Exchange Comm���n v. Chenery, 332 U.S. 194, 196 (1947); Louisiana-Pacific Corp. v. NLRB, 52 F.3d 255, 258-59 (9th Cir. 1995); Burlington Truck Lines, supra (failure to make findings supporting remedy chosen); Argo-Collier Truck Lines v. United States, 611 F.2d 149, 152 (6th Cir. 1979) (failure to address problems raised in comments); Port Norris Express Co. v. ICC, 687 F.2d 803, 811 (3d Cir. 1982) (same). The one major difference from an ordinary appeal is that the agency decision cannot be sustained on a basis other than what it has expressly set out. Court is not suited to substitute itself for the agency; it can only say a decision was arbitrary, not that another hypothetical decision would have been better.

                  3.      Note that outside DC Circuit, challenges to regulations are few and far between. Do not expect judges elsewhere to be familiar with these requirements. They may tend to treat matter as a trial--which allows discovery, but lets agency explain decision while still claiming the ���arbitrary and capricious��� standard. Begin education process early. An attempt at discovery may lead Government to argue the case for you: discovery is not allowed because case must be tested on the written record.

                  4       Use your comments on the rulemaking to set up your attack. Object is to back agency into a corner where it either completely ignores your comment (thus becoming vulnerable under the ���entirely ignores an important aspect��� standard) or expressly makes a decision which is contrary to the evidence or the law, and becomes vulnerable on that basis. Don���t ignore the possibility of a sucker attack here, with the critical comment sent in an otherwise minor letter, rather than with your organization���s main comments. Rule drafters pay a lot of attention to the major organization���s comments and can overlook the comment of a private person.     

          B.      Standard tactics


                  1.      Nit-pick the rulemaking on its face.

                           Compare text to statutory requirements.

                           Stress arguments made in comments and not addressed in ruling.

                  2.      Defeating the ���Stalingrad Defense���

                           Standard form of defense: agency introduces every document it has ever compiled with any bearing on issue, and argues it forms the basis of the decision.  This may ultimately entail thousands of pages. Agency thus has the option of invoking any detail in those thousands of pages as support for its decision. Agency also opposes any discovery aimed at determining whether decisionmaker really considered or relied on same.

                                    Objects: (1) give ability to support any tenuous ruling with something, somewhere, in record; (2) overwhelm you and court with mounds of paperwork, leading court to throw up hands and figure anything is better than wading through it; (3) keep out of evidence the fact that the ultimate decisionmaker never saw a fraction of those materials; his staff gave him the rule for signature, and maybe four or five key documents.


             3. The FOIA Ambush--a Response to a Stalingrad Defense.

                  Most agencies do not compile an admin. record for a rule or decision unless and until they are sued; then the agency attorney and bureaucrats sit down and decide what is in the record.

                           Long before suit, you (or better yet, your client, since this may generate a dispute over fact and you���re restricted in testifying) request ���administrative record��� of decision under FOIA. Do not combine this with requests for other data. You want a clear record here. Request only the ���administrative record for X.���

                           Agency, not wanting to go to the days or weeks of work to compile its usual ���Stalingrad��� record when suit may never be brought, responds with handful of documents. Upon receipt, you or your client immediately catalog these for your records. Then you sue.

                           If agency then, after suit, produces hundreds of documents as its record, you have the basis to attack legitimacy of its ���administrative record.��� An attempt to cut off your discovery can now be met with the response that here is the agency statement before suit that the ���administrative record��� for this rule was only twenty documents, and here is their filing in court of two hundred documents. Discovery should be allowed in order to probe the discrepancy.

                           Upon probing, you will discover that agency attorney had major responsibility for deciding what went into or was excluded from the decisionmaker���s ���record.��� You will of course express shock at this appalling discovery. The ���record��� isn���t anything seen by the decisionmaker; it���s a fiction generated by litigating counsel long after the decision was made.

                           Effect is either to destroy decision or, at minimum, allow discovery. Agency will normally oppose discovery, arguing case must be tried on the record. If you can break record open, this claim is undermined. You then proceed to discover exactly how much of that mound of paper was ever shown to the decisionmaker--usually meaning about twenty pages out of hundreds.

                           Efficacy depends on agency. Tactic is very useful against ATF or Interior Dept., not useful against Forest Service, since it actually does compile an admin. record while decision is being made. Efficacy against other agencies is so far untested. Note also that ATF is extremely slow on answering FOIA requests, and runs far over the 20 working day deadline, so be sure to budget in extra time.

                  4. Procedural flanking attacks:

                           a.       Administrative Procedure Act

                                    Various requirements: must not be arbitrary or capricious, immediate review allowed if permit revoked and not stayed during admin. appeal. 5 USC 704.

                                             Revocation of permit requires willfulness, unless agency has given written warning and opportunity to comply. 5 USC 708.

                          b.       National Environmental Protection Act (42 USC ��4332; implementing regs at 40 CFR part 1500.).

                                    In theory, all federal actions must be reviewed.

                                             If entire category of actions is unlikely to have environmental effects, agency can draft ���categorical exclusion��� from analysis.

                                             Otherwise, must prepare Environmental Assessment, use that to determine if must do Envir. Impact Statement.

                                             If agency (as they always do; an EIS is costly and slow) chooses to forego EIS, it must be able to demonstrate that EA shows it has taken a hard look at environmental concerns and these are not significant.  Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976); Maryland-National Capital Park Planning Comm���n v. U.S. Postal Service, 487 F.2d 1029, 1040 (D.C. Cir. 1973).

                           c.       Federal Advisory Committee Act

                                             FACA (5 USC App. 2; see 41 CFR ��101-6.10 for implementing regs)is rarely invoked, but forbids agency to repetitively use group including non-federal employees for advice, unless group is duly registered and has open meetings. Such groups are in fact almost never registered.  Often violated by some agencies, which convene panels of outsiders to aid in, review, or give special comment on rulemakings. See Alabama-Tombigbee Rivers Coalition v. Dept of Interior, 26 F.3d 1103 (11th Cir. 1994) (injunction issued against endangered species listing based on expert review panel); Public Citizen v. US Dept of Justice, 491 US 440 (1989) (ABA review of prospective judges does not make it an advisory committee). Be on alert for any signs that some commenters were given special consideration--allowed to comment out of time, written personally, etc..

                           d.      Authorized signature. Agencies sometimes overlook the delegation chain; it���s often worth checking. The statute will usually delegate rulemaking authority to the ���Secretary,��� who will in turn delegate some decisions to agency heads and others to Assistant Secretaries. On occasion, a rulemaking will be signed by the wrong person, or by his deputy, without anyone having given a delegation of power to that person. Ask for delegation documents in discovery. 


         A.      Go in hard and early.

                           Government is extremely slow in reaction: all decisions require consensus and multi-level review. Normal internal procedure is for agency to prepare lengthy ���litigation report,��� cleared up to head of agency and head of legal staff, and submit it to Justice before Justice even drafts an answer. When I did lit. reports for Interior, the process took weeks. Anything which short-circuits this process causes chaos.

                           Use Motion for TRO and for Preliminary Injunction if possible.

                           Consolidate Motion for PI with hearing on merits (Rule 65(a)) if it seems likely to win. Consolidation gives many advantages:

                           1.      Trial on merits (enabling victory based on balancing of evidence) within 20 days or so, when government is still off-balance.

                           2.      Judge sees way to clear his docket in hurry.

                           3.      No need for standard four-part test of PI (likelihood of success, irreparable harm, public interest, etc.). In many cases, a consolidated hearing on the merits can be tried more quickly than the PI motion itself could have been.

                           4.      Downside: no time for discovery. But use of Freedom of Info. Act can largely compensate, and if you���re winging it, so is the government, usually with far less preparation. When I served at Interior, Sierra Club and HSUS did this constantly, and it was quite hard to deal with. They���d have had months to prepare for the suit, and we���d have a few days.

                                    The ability to thus expedite varies enormously with the jurisdiction. DC courts love to expedite, and the burden this places on the government is no moment. Other district courts may have negative reactions to attempts to expedite, or may allow it only if you negotiate out and stipulate a briefing schedule. Scout out your own court. If it expects a briefing schedule, negotiate it out beforehand; once your motion is denied you lose leverage to press for a shorter stipulated time.

         B.      Discovery:

                           1.      Is generally curtailed, but Freedom of Information Act can substitute to large degree.

                           2.      Can get discovery if record is shown to be flawed. (See FOIA ambush, above).           

         C.      Nature of opposition and court.

                           Local US attorneys are usually courtroom-wise, while attorneys from DoJ in DC often lack courtroom experience and always lack knowledge of judge, local habits, etc..  In all but rare cases, this will work to your advantage.

                           Know habits of local judge. A court with overloaded docket will not favor a test case. A judge bored by his criminal docket may find it interesting.  DC judges have little against test cases--they are their usual fare--but a judge in the real world may find it a pain. Some judges hate motions for TROs, viewing them as attempt to gain unfair advantage. Some expect you to work out briefing schedule before advancing to motion for PI.



         In a constitutional challenge to State law, you can plead 42 U.S.C. 1983, and recover fees under 42 U.S.C. ��1988. In a challenge to federal action, attorney fees may be recoverable under the Equal Access to Justice Act, 28 USC 2412: 

         Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection(a), incurred by that party in any civil action ... brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.


         A. Timing.


         The award must be sought within 30 days of a final judgment, defined as ���a judgment that is final and not appealable.��� 28 U.S.C. ��2412(d)(2)(G). If a judgment is itself appealable, the thirty days only begins to run when the time for appeal expires. 

         B. Procedure.

         Check your local rules to see if there are special provisions. It may be useful to invoke Rule 54, which permits you to bifurcate the determination on liability from the determination of amount. This has two advantages: (1) if you lose, you are not put to the work of itemizing your time; (2) it deprives the defense of a tactical advantage--to the extent you argue that your work was long and difficult, the defense can invoke that to argue that its position was ���substantially justified.���

         C. Grounds

         To be substantially justified, the government must demonstrate that its position had a reasonable basis both in law and in fact. Ramon-Sepulveda v. INS, 863 F.2d 1458  (9th Cir. 1988); Pierce v. Underwood, 487 U.S. 552 (1988). Reasonable justification requires far more than a colorable argument. A ���strong showing��� of reasonableness is required. Natural Resources Defense Council v. U.S. E.P.A., 703 F.2d 700, 712 (3d Cir. 1983); H.R. Rep. No. 96-1004, 1980 U.S. Code, Cong. & Admin. News 4997. Substantial justification keys on a demonstration that the government position, at the time it was taken, was reasonably based in law and in fact. 

         D. Amount. 

         As originally enacted in 1981, EAJA provided for a $75/hour ���cap,��� as adjusted to inflation. The ���cap��� was raised to $125/hour in 1996, 28 U.S.C. ��2412(d)(2) (supp. 1996). The cap must be adjusted for cost of living increases since then; this adjustment is not treated as a ���special factor��� under the statute; it represents the rule rather than the exception. Ramon-Sepulveda; Animal Lovers Vol. Ass���n v. Carlucci, 867 F.2d 1224 (9th Cir. 1989).

         The statute does permit adjustment where there is a limited availability of attorneys with the necessary skills, but courts have been reluctant to apply this. There have been a few applications.  See Int���l Woodworkers  (federal litigation skills and experience in Redwood Employment Protection Program); Pirus v. Bowen, 869 F.2d 536 (9th Cir. 1989) (SSI law); Nat���l Wildlife Federation v. FERC, 870 F.2d 552 (9th Cir. 1989) (environmental law). It is safe to predict that politically incorrect causes, such as firearms liberties, will be less likely to find favor with the courts as a suitable specialty.

         E. Tactical Matters.

         1.      As noted above, a motion to bifurcate is usually advisable. File it early.

         2.      The defense may try to drive down your amount by suggesting that non-productive time (i.e., every motion you didn���t win, or theory upon which you did not prevail) should be excluded. Possible counter is to point out that the intent of EAJA was to level playing field with government, and its attorneys get paid for the time they spent on motions they lost. It may be advisable in your timekeeping to try to split time as to theories and motions early on, so as to have a record should this become necessary.

                  Defense will try to confound ���issues��� with ���motions.���A court may--under some conditions--choose to exclude time spent on issues on which Plaintiff did not prevail. Government will try to argue court should exclude any time spent on any motion which lost. ���Issues��� are far broader than ���motions.��� Riverside v. Rivera, 477 U.S. 561 (1986) (upholding refusal to reduce lodestar although party prevailed on only some claims against some defendants); Hensley v. Eckerhart, 461 U.S. 424 (1983) (Full award proper where either (a) party obtains complete relief despite losing some motions, or (b) achieves excellent success on some claims interrelated on facts or law to the others: reduced award proper where claims are separable and success was ���limited in comparison to the scope of the litigation as a whole.���).

         F.      Digression: Fees In Criminal Cases.

         Recovery of attorneys��� fees in criminal cases is, of course, exceptional--and that is quite an understatement. However, the GCA���s 1986 amendments allowed it for forfeitures and, arguably, for prosecutions in unusual circumstances--where the prosecution or other action was vexatious, frivolous, or in bad faith. 18 USC 924(d)(2)(B). There is a discussion of the legislative history in Hardy, The Firearm Owners��� Protection Act, 17 Cumb. L. Rev. 585, 665 (1986).

         An even broader provision is found in some Justice appropriations bills, e.g., Pub. L. 105-119, sec. 617:

         During fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in which the defendant is represented by assigned counsel paid for by the public) pending on or after the date of the enactment of this Act, may award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust. Such awards shall be granted pursuant to the procedures and limitations (but not the burden of proof) provided for an award under section 2412 of title 28, United States Code. To determine whether or not to award fees and costs under this section, the court, for good cause shown, may receive evidence ex parte and in camera... Fees and other expenses awarded under this provision to a party shall be paid by the agency over which the party prevails from any funds made available to the agency by appropriation.

David T. Hardy (dthardy - at sign -