2. Judicial Review of Agency Action

• Pages: 177-198

177

JUDICIAL REVIEW OF AGENCY A CTION 2

Judicial

Review of

Agency

Action

177

Citations:

5 U.S.C. §§701-706 (2000), originally enacted as Administrative Pro-

cedure Act §10; significantly amended by Pub. L. No. 94-574, 90 Stat.

2721; 28 U.S.C. §§1331, 1631, 2112, 2341-51 (2000).

Overview:

APA Provisions. The principal statutory authority governing judicial

review of agency action is 5 U.S.C. §§701-706, which codify section 10 of

the Administrative Procedure Act. (The APA’s text may be found in the

Appendix to Chapter 1.) Sections 701-706 constitute a general restatement

of the principles of judicial review embodied in many statutes and judicial

decisions; however, they leave the mechanics regarding judicial review to

be governed by other statutes or court rules.1 For a thorough discussion of

cases concerning both availability and scope of judicial review, see A Guide

to Judicial and Political Review of Federal Agencies, 1-210 (John F. Duffy

& Michael Herz eds., ABA. 2005). For a summary of the law, see Section

of Administrative Law and Regulatory Practice, American Bar Association,

A Blackletter Statement of Federal Administrative Law, 54 Admin. L. Rev.

1, 36-59 (2002).

Section 701 embodies the basic presumption that judicial review is

available as long as no statute precludes such relief or the action is not one

committed by law to agency discretion. (Abbott Laboratories v. Gardner,

387 U.S. 136, 140 (1967); Citizens To Preserve Overton Park, Inc. v. Volpe,

1Attorney General’s Manual on the Administrative Procedure Act 93

(1947).

178 JUDICIAL REVIEW OF AGENCY A CTION

2

401 U.S. 402, 410 (1971); Heckler v. Chaney, 470 U.S. 821, 826 (1985)).

Preliminary or interlocutory actions are ordinarily reviewable only on re-

view of the final agency action. (See, e.g., Association of National Adver-

tisers, Inc. v. FTC, 565 F.2d 237 (2d Cir. 1977)). In those situations where

preliminary or interlocutory actions are immediately reviewable, any suit

seeking such relief that might affect a court of appeals’ jurisdiction over a

final agency decision is subject to exclusive review in the court of appeals

rather than district court. (See Telecommunications Research & Action Center

v. FCC, 750 F.2d 70 (D.C. Cir. 1984).)

Section 702 is designed to govern the issue of who has standing to

challenge agency action. It sets forth the general principle that a person

suffering legal wrong or adversely affected or aggrieved by agency action

is entitled to judicial review of that action. The phrase “legal wrong” merely

connotes such wrong as statutes or court decisions identify as constituting

grounds for judicial review. The determination of who is “adversely af-

fected or aggrieved” reflects judicial evolution of the law of standing; the

courts make their determination based on constitutional and statutory re-

quirements.2

Section 703 deals with the form and venue of the judicial review pro-

ceeding. Briefly, there are three types of review proceedings:

•“Statutory review,” a review proceeding specifically provided by

statute for the agency action in question (e.g., a proceeding to re-

view a rule of the Federal Trade Commission under 15 U.S.C.

§57a(e));

•“Nonstatutory review,” a review through a suit against the agency

or its officers for declaratory or injunctive relief or habeas corpus

in a court of competent jurisdiction;

•A civil or criminal enforcement proceeding instituted by the gov-

ernment or possibly by a private party that involves the validity of

agency action.

Where a statutory proceeding is provided, such review is frequently,

though not always, in the courts of appeals. Nonstatutory review proceed-

ings and enforcement proceedings are almost invariably brought in the U.S.

district courts. Where there is an adequate statutory review provided, a

2Id. at 96.