1
10.1 Judicial Remedies

• Part I

2
Basic Requirements

• Court must have jurisdiction
• Plaintiff must state a recognized cause of action
  and seek a recognized remedy
• This is the rub in most of the environmental
  cases - what is the plaintiff's interest?
• Must be a real case and controversy
• Supreme Court does not give advisory opinions
• States often do

3
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?
• Why?
• What usually goes to the trial (district courts?

4
No explicit statutory review in the enabling act
5
28 USC 1361

• Gives district courts jurisdiction over mandamus
  to require an officer or employee of the US or an
  agency to perform a duty owed the plaintiff

6
28 USC 1343

• Jurisdiction to hear cases under 42 USC 1983 and
  other civil rights statutes (mostly about state
  officials)

7
28 USC 1331

• Actions arising under federal law, constitution,
  treaties, etc.
• Gets most federal agency actions
• Plaintiff can sue where the defendant resides,
  the cause of action arose, or the plaintiff
  resides, unless real property is involved
• Once 1331 is invoked, the APA 701-706 controls
• No 10,000 minimum for jurisdiction for agency
  law or federal questions in general

8
Sovereign Immunity

• What is sovereign immunity?
• Where did it come from?
• Why have it?

9
Federal Sovereign Immunity

• In 1976 the feds abolished federal sovereign
  immunity for actions other than money damages
• Money damages come under the Federal Tort Claims
  Act (FTCA)

10
Louisiana

• LA abolished all sovereign immunity in the 1974
  constitution
• What does this mean for state agency actions?
• Still has discretionary authority defense, but it
  is hard to figure out what it all means in LA