§ 21.7 Stays of Administrative Action Pending Judicial Review

• Jurisdiction: Washington

§21.7 STAYS OF ADMINISTRATIVE ACTION PENDING JUDICIAL REVIEW

As a general rule, an agency order is effective on the date it is entered, unless a different effective date is set in the agency order itself or in an applicable statute. See, e.g., RCW 34.05.473. Under the APA, an agency order is entered when it is signed "by all persons who are to sign the order, as an official act indicating that the order is to be effective." RCW 34.05.010(5).

Neither a motion for reconsideration nor a petition for judicial review automatically stays the effect of the agency action. See, e.g., RCW 34.05.470(2), .473, .550, .578, .582; Lee v. Jacobs,81 Wn.2d 937, 939, 506 P.2d 308 (1973). Accordingly, the petitioner and other parties must comply with the agency action, even if a reconsideration motion is pending before the agency, unless or until a stay order is issued.

The filing of a notice of appeal in an implied consent case no longer stays the effective date of the license suspension or revocation. The implied consent statute was amended to eliminate "automatic stays" upon appeal. Petitioners now must move the superior court for a stay.

(1) Availability of temporary remedies from the agency pending judicial review depends on statute

Absent a statute to the contrary, it is questionable whether an agency has authority to stay its own order after a petition for judicial review has been filed and the superior court has acquired jurisdiction over the matter. At that point, the agency's authority over the matter is limited. See Martin v. Dayton Sch. Dist. No. 2,85 Wn.2d 411, 413, 536 P.2d 169 (1975), cert. denied, 424 U.S. 912 (1976).

(2) Temporary remedies are available from the court pending judicial review

In the absence of a statute, the court has inherent power to stay administrative action. Lee, 81 Wn.2d at 939; St. Paul & Tacoma Lumber Co. v. Dep't of Labor & Indus.,19 Wn.2d 639, 649, 144 P.2d 250 (1943). Typical standards for judicial stay include whether the issue is debatable, whether a stay is necessary to preserve the fruits of the appeal, and whether equity favors the grant of a stay. See RAP 8.3; Purser v. Rahm,104 Wn.2d 159, 177, 702 P.2d 1196 (1985), cert. dismissed, 478 U.S. 1029 (1986); Kennett v. Levine,49 Wn.2d 605, 606-07, 304 P.2d 682 (1956). These standards should apply to judicial stays of most administrative action.

The APA and other statutes regulate the court's inherent stay power.

(a) Stays under the APA

Outside of the procedures for judicial review, the Administrative Procedure Act, Ch. 34.05 RCW, gives agencies authority to stay the effectiveness of final orders. RCW 34.05.467. The APA provides no standards for the grant of a stay by an agency. Because it is the agency's order at issue, the agency should have fairly wide discretion.

RCW 34.05.467 adds that an agency's denial of a stay is not subject to judicial review. Of course, the reviewing court itself has authority to issue...