CHAPTER 1 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS

• Jurisdiction: United States

Natural Resources and Environmental Administrative Law and Procedure II
(Sep 2004)
CHAPTER 1
JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS
Patricia S. Bangert
Bangert & Associates, LLC
Denver, Colorado

Patricia S. Bangert's current practice at Bangert & Associates, LLC, focuses on administrative issues, government relations, civil rights, including employment discrimination, and animal law.

Ms. Bangert has taught Administrative Law as a Visiting Professor and Adjunct Professor at the University of Denver and the University of Colorado in Boulder.

Prior to private practice, Ms. Bangert served as the Deputy Attorney General for Natural Resources in the Colorado Attorney General's Office, as well as the Deputy Solicitor General and the Director of Public Policy in that office. Prior to coming to Colorado, Ms. Bangert served as the chief attorney for the Bureau of Reclamation at the Department of the Interior in Washington. During her tenure at Interior, she also represented the Fish and Wildlife Service and the National Park Service.

Ms. Bangert received her law degree from George Washington University in Washington, D.C. and her B.A. in Philosophy from the University of Maryland.

The topic of judicial review of agency action can be divided into three issues: (i) whether a person or entity may seek judicial review of agency action; (ii) when the party may seek judicial review; and (iii) what judicial review of the agency action will be provided.

I. WHETHER A PARTY CAN SEEK JUDICIAL REVIEW

In order to get judicial review of an agency action, a person must meet several threshold requirements: (a) the party must have a basis for getting into court; (b) the reviewing court must have jurisdiction over the action; (c) the government must have waived sovereign immunity; and (d) the party seeking review must have standing to bring the action.

Basis for court review. A party seeking the aid of the federal courts must have some basis for getting into court. That basis may be found in statutes, the Constitution or common law. For example, the statute establishing an agency (sometimes referred to as an "enabling act") or a program may provide a basis for judicial review. The Federal Trade Commission Act, for example, allows review of agency orders by the court of appeals. 15 U.S.C. § 45. The Administrative Procedure Act provides a general basis for challenges to agency action by an aggrieved party when no money damages are sought. See 5 U.S.C. § 702 et seq. The constitutionality of a government action may also be challenged. The important point here is that the party seeking judicial review must cite to some legal basis for using the courts.

Court jurisdiction. A court asked to review an agency action must have jurisdiction over the action. An agency enabling act may require a party to go to a particular court. For example, the Federal Trade Commission Act mentioned above requires a person seeking review of an agency order to appeal to the court of appeals. Another statute may require a person seeking judicial review of an agency action to go to the appropriate district court. For...