'Standing' and Remedial Rights in Administrative Law

113 Pages Posted: 23 Aug 2018 Last revised: 24 Aug 2018

See all articles by Caleb Nelson

Caleb Nelson

University of Virginia School of Law

Date Written: August 20, 2018


Modern doctrine about judicial review of administrative action traces back to Association of Data Processing Service Organizations v. Camp (1970). There, the Supreme Court announced a new test for deciding whether a plaintiff has “standing” to challenge the legality of an action taken by a federal agency. Judges were simply supposed to ask (1) “whether the plaintiff alleges that the challenged action has caused him injury in fact” and (2) “whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee” that the challenged action allegedly violated.

Partly because of intervening scholarship, modern courts and commentators have translated Data Processing’s discussion of “standing” into the language of remedial rights (or “rights of action”). At least since the 1980s, Data Processing has been understood to hold that when a federal agency oversteps its authority, the Administrative Procedure Act normally confers remedial rights upon everyone who satisfies Data Processing’s test for “standing.” That is an exceptionally important aspect of modern administrative law. But it is mistaken—not just about the Administrative Procedure Act, but also about what Data Processing itself held. This Article shows that Data Processing’s concept of “standing” was only a preliminary screen, not the last word about whether plaintiffs have a claim for relief. The Supreme Court has never made a considered decision that when an agency is behaving unlawfully, the Administrative Procedure Act confers the same remedial rights upon plaintiffs whose interests are only “arguably” within a protected zone as upon plaintiffs whose interests are actually protected.

Keywords: standing, rights of action, judicial review of administrative action, APA, zone of interests, Data Processing, ADAPSO, Barlow v. Collins, Justice Douglas, Justice Brennan, Lee Albert, Kenneth Culp Davis, Investment Co. Inst. v. Camp, Japan Whaling, Clarke v. Securities Indus. Ass'n, Lexmark

Suggested Citation

Nelson, Caleb, 'Standing' and Remedial Rights in Administrative Law (August 20, 2018). Virginia Law Review, Vol. 105, 2019, Virginia Public Law and Legal Theory Research Paper No. 2018-49, Available at SSRN: https://ssrn.com/abstract=3235637

Caleb Nelson (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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