Skip to main content

Search

Federal Practice Manual for Legal Aid Attorneys: 5.3.7 Ripeness

While ripeness often overlaps with the doctrines of final agency action and exhaustion of administrative remedies, ripeness does have independent significance. In the APA context, ripeness issues most frequently arise when a challenge is made to agency rules before they are enforced or to agency actions announced informally.1948 In Abbott Laboratories v.

Federal Practice Manual for Legal Aid Attorneys: 5.3.8 Rulemaking

The APA prescribes three principal means for the adoption of agency rules:

  • • formal rulemaking,1963
  • • informal rulemaking, and
  • • the issuance of interpretative rules, procedural rules, general statements of policy, and other rules exempted from normal rulemaking requirements.

We focus on the second and third means here.1964

Federal Practice Manual for Legal Aid Attorneys: 5.3.10 Deference to Agency Interpretation of Statutes

Even if the agency’s rule is promulgated following notice and comment, it may still be challenged on the ground that it exceeds the limits of the agency’s statutory authority or proceeds from a misinterpretation of the statute. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court articulated a two-step standard for reviewing an agency’s interpretation of the statute that it administers:

Federal Practice Manual for Legal Aid Attorneys: 5.4.3 Implied Private Rights of Action to Enforce Federal Statutes

The Supreme Court has also circumscribed the availability of implied private rights of action to enforce federal statutes beyond already established rights of action. In Alexander v. Sandoval, the Court explained that a statutory “cause of action does not exist” unless there is clear evidence that Congress intended to “create not just a private right but also a private remedy.”2122

Federal Practice Manual for Legal Aid Attorneys: 5.5.2 Intended Versus Incidental Beneficiaries

Performance of a contract will often benefit third parties, but a duty is only created to those who are “intended beneficiaries,” as opposed to “incidental beneficiaries.”2189 Whether a person is an intended beneficiary with the resulting standing to sue depends upon the intent of the parties to the contract.2190 In general, “[t]the intended beneficiary need not be specifically or individually identified in the contract.

Federal Practice Manual for Legal Aid Attorneys: 5.5.3 Contract enforcement of prevailing wage requirements

Prevailing wage laws, which impose occupation-based minimum wage (and sometimes benefit payments) requirements on employers contracted to work on government projects, appear at all levels of the government. They exist in tandem with other federal, state and local wage payment laws that provide parallel – and sometimes overlapping – enforcement schemes,2215 and are usually required to be incorporated into applicable contracts as contract terms.2216

Federal Practice Manual for Legal Aid Attorneys: 7.1.2 Resources

Another factor to consider is whether your program has sufficient resources to bring the class action. On the one hand, if the issue is not litigated as a class action, a systemic problem may remain unresolved, and numerous individual cases may be needed. This results in duplicative effort and potential for conflict.

Federal Practice Manual for Legal Aid Attorneys: 7.1.4 Effects on Relief

Several issues relating to relief are critical considerations in deciding whether to bring the case as a class action. These include whether to seek preliminary relief on behalf of named plaintiffs or the class, how tolling of the statute of limitations affects plaintiffs or class claims, and settlement negotiation.

Federal Practice Manual for Legal Aid Attorneys: 7.2.4 Typicality

While commonality and typicality "tend to merge,"3447 the commonality requirement focuses on the common thread among all class members, and the typicality requirement concentrates more on the attributes of the named plaintiff as class representative. The typicality requirement3448 is “not demanding.”3449 In General Telephone Co. of the Southwest v.

Federal Practice Manual for Legal Aid Attorneys: 7.2.7 Existence of a Definite Class - Ascertainability

Most circuits have inserted an implied mandate into the express requirements of Rule 23 that, to obtain certification, a class must be sufficiently definite or “ascertainable.”3490 A court should be able to identify all members of the class by using objective criteria.3491 In addition to the ascertainability requirement, some circuits have required a “heightened” showing that determining class membership is “administratively feasible,”3492 wh

Federal Practice Manual for Legal Aid Attorneys: 7.2.9 A Live Claim - Mootness

For a class to obtain certification, as with any other case, courts require a claim to be live. As with standing, this is based in Article III. If neither a class representative nor any class member has a live claim, the entire case is moot.3529 Questions arise if a class representative’s individual claim becomes moot but the class claims remain live.

Federal Practice Manual for Legal Aid Attorneys: 7.2.10 Defense That a Class is Not “Necessary”

Particularly in cases against government officials seeking injunctive or declaratory relief pursuant to Rule 23(b)(2), defendants may argue that a class is not necessary because a judgment that will bind it with respect to all claimants or prospective injunctive relief “will benefit all members of a proposed class to such an extent that the certification of a class will not further the implementation of the judgment.”3550 Courts have denied certification by applying some form of a required necessity showing.

Federal Practice Manual for Legal Aid Attorneys: 7.2.12 Rule 23(b)(1) Classes

Class certification under Rule 23(b)(1) is designed to “prevent possible adverse effects, either on the parties opposing the class or on absent class members, that might result if separate actions had to be brought.”3555 Actions brought under Rule 23(b)(1) do not include notice of class certification to absent class members or the right to opt out of class membership as a matter of right.3556