Judicial review of administrative action is the remedy available to any person who is adversely affected by the act or omission of the administrative agency.[i] A person is deemed to be adversely affected by administrative action if such person has sustained injury in fact, actual or threatened, due to the action of the administrative agency. In addition, the alleged injury must be a protected interest regulated by statutory or constitutional rights.[ii] In other words, the aggrieved person must have been prejudiced or is likely to be prejudiced by the agency action and a judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the agency action.
Injury in fact reflects the statutory requirement that a person be “adversely affected” or “aggrieved,” and it serves to distinguish a person with a direct stake in the outcome of a litigation even though small from a person with a mere interest in the problem.[iii]
A person is not adversely affected or aggrieved by agency action unless that action has caused that person injury in fact. The personal injury may be an economic injury or any other kind of injury. A person meets the aggrieved party standing requirement when he or she affirmatively establishes that a judgment or order causes him or her injury. Standing is not limited to those who have been “significantly” affected by agency action. Thus, persons with a direct stake in the outcome of the litigation, even though small have a standing as against those with a mere interest in the problem.
For instance, an employee of environmental organization who challenged the agency’s refusal to consider untimely appeals of National Forest project decisions is not an interested party in the legal sense since the employee did not live on or near land affected by projects, and employee’s connection to land stemmed primarily from his job responsibility to comment on Forest Service activities.[iv]
The aggrieved party should have suffered actual injury to a concrete, particularized interest, caused by the challenged conduct and mere hypothesis that the final agency rules had increased the risk to the party’s interests is not sufficient proof. [v]
“Injury in fact, as required to establish a plaintiff’s standing in an environmental case, is satisfied if the party adequately shows that he has an aesthetic or recreational interest in a particular place or animal, and that interest is impaired by a defendant’s conduct.” [vi]
Threatened injury in fact
In order to prove the the injury-in-fact element of standing, a party only needs to demonstrate that the administrative action threatens to cause an injury to an interest protected by law. [vii] This means that there must be a showing of likelihood of injury. The alleged injury-in-fact must be “sufficiently direct and palpable to allow a court to say with fair assurance that there is an actual controversy proper for judicial resolution.”[viii] Moreover, the personal injury may be “actual or threatened.” [ix]
A threatened injury is presumed where the plaintiff alleges that governmental action will be taken directly against the plaintiff and the court assesses the likelihood that a clash between the government and the plaintiff will in fact occur. This may happen when the government acts directly against a third party whose expected response in turn will injure the plaintiff. Then the court examines whether the third party’s decision is sufficiently dependent upon the governmental action so that the plaintiff’s injury is fairly traceable to that action and is likely to be redressed by an order binding the government.
Economic injury in fact
In order to allege an economic injury in fact, the aggrieved party must show palpable economic injuries and courts may grand relief even if the economic injury alleged is minuscule. However, there should be a lawful cause and the mere threat of financial loss due to lawful competition does not confer standing on a party. On the other hand, competitive injury due to government regulation will constitute injury in fact. For a court to find that a party has standing to challenge tax exempt status of another, the party must allege, at a minimum, (1) an injury in fact, (2) fairly traceable to the granting of tax exempt status, (3) that is likely to be redressed by enjoining the further grant of tax exempt status.[x]
Plaintiff must allege a distinct and palpable injury to himself, even if it is shared by a large class of possible litigants.
The notion of standing “focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.”[xi] Noneconomic injuries may be sufficient to confer standing on a plaintiff to challenge agency actions.
Examples of non economic injuries include harm to aesthetic or environmental well-being, like the desire to use or observe an animal species, even for purely aesthetic purposes may confer standing on a particular party.[xii] However, not all noneconomic injuries will confer standing as for instance, a U.S.-resident exile from foreign country has no standing to challenge decision to import substance from home country since there is no causation between agency action and injury.[xiii]
In addition, there is a Zone-of-interests test to whether, in view of Congress’s intent to make an agency action reviewable, a particular plaintiff is intended to be heard. If the plaintiff is not the subject of the contested regulatory action, the test denies a right of review. Also, if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute, no intent is presumed.
The zone-of-interests test is relevant only where the action under attack is that of a government agency and the test “is not whether a party is in fact regulated by a statute, but whether that party asserts interests that arguably fall within the zone of interests so regulated.”[xiv]
[i] 5 U.S.C.A. § 702
[ii] 5 U.S.C.A. § 430
[iii] United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 690 (U.S. 1973)
[iv] Bensman v. U.S. Forest Service, 408 F.3d 945 (7th Cir. 2005)
[v] Center for Law and Educ. v. Department of Educ., 396 F.3d 1152 (D.C. Cir. 2005)
[vi] National Wildlife Federation v. Norton, 386 F. Supp. 2d 553 (D. Vt. 2005).
[vii] Romer v. Board of County Comm’rs, 956 P.2d 566, 572 (Colo. 1998)
[viii] O’Bryant v. Public Utils. Comm’n, 778 P.2d 648, 653 (Colo. 1989)
[ix] Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464 (U.S. 1982)
[x] Research Consulting Associates v. Electric Power Research Institute, Inc., 626 F. Supp. 1310 (D. Mass. 1986)
[xi] Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (U.S. 1976)
[xii] Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992)
[xiii] Dellums v. U.S. Nuclear Regulatory Com’n, 863 F.2d 968 (D.C. Cir. 1988)
[xiv] Apter v. Richardson, 510 F.2d 351 (7th Cir. 1975)