JurisdictionUnited States
Natural Resources Administrative Law and Procedure
(Nov 1981)


Norton F. Tennille, Jr. *
and Arnold & Porter
Denver, Colorado
Robert H. Klonoff **
Arnold & Porter
Washington, D.C.

Judicial review has been characterized as "[t]he basic remedy against illegal administrative action."1 The Administrative Procedure Act (APA), enacted in 1946, contains several provisions concerning judicial review. Section 702 of the APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." The APA also provides for judicial review of "[a]gency action made reviewable

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by statute and final agency action for which there is no other adequate remedy in a court...."2 And Section 706 sets forth the standards courts should apply in reviewing various kinds of agency action.

There are numerous important questions relating to judicial review that any law school course would examine in detail. These include:

(1) Is the agency's action reviewable or is it unreviewable because a statute precludes the relief requested or because the action is committed to agency discretion by law?

(2) Assuming review is not precluded, which court has jurisdiction?

(3) In which court is venue appropriate?

(4) Is the issue ripe for review?

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(5) Has the party seeking review exhausted his administrative remedies?

(6) Does the party seeking review have standing to sue?

(7) What standard of review should the court apply in reviewing questions of law and fact?

(8) What substantive law should the court apply?3

It is obviously not possible to discuss — even in a cursory manner — all of these issues in one paper. Consequently, this paper will limit its discussion to four broad categories, focusing on a narrow but important issue within each category.

First, this paper discusses the question of where cases are reviewed, focusing on the problem of the "race to the courthouse." This problem arises because the court of appeals that hears the action is typically the one in which a petition for review of agency action is filed first. Since circuit courts differ in their views on significant questions of

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administrative procedure and substantive law, attorneys and their clients often view one circuit as more advantageous than another in a particular litigation. Thus the various parties "race" to their preferred circuit court in an effort to be first to file an appeal.

Second, the paper discusses when action is reviewable, focusing on the doctrine of "ripeness." The doctrine of ripeness, which has both constitutional and prudential underpinnings, is designed to prevent a court from becoming embroiled in a controversy before the issues have become adequately sharpened and focused.

Third, the paper discusses the scope of judicial review, focusing on legislation to amend Section 706 of the APA, the so-called "Bumpers Amendment" (the "Amendment"). The rationale of the Bumpers Amendment is that courts have been too deferential in reviewing agency action. This Amendment would, among other things, make clear that there is no presumption of correctness when courts are reviewing agency judgments on questions of law.

Finally, the paper discusses an important substantive issue: judicial review of claims of agency bias. The focus is on a recent case of alleged agency bias in the context of "hybrid rulemaking."

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These topics are typical of the wide variety of problems encountered in judicial review of agency action — problems involving the scope, nature, timing, and location of judicial review.


Both the APA and individual enabling statutes provide that federal courts of appeal have jurisdiction to review both substantive and procedural aspects of agency action.4 The APA does not, however, specify which circuit court is to review particular challenges to agency action. Moreover, venue provisions of individual agency statutes frequently permit review in any circuit court. An attorney whose client is aggrieved by an agency action will therefore attempt to predict which circuit will provide his client with the best chance of obtaining the desired relief and

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will file a petition for review in that particular circuit. If there are multiple parties seeking judicial review in different circuits, a device must be available to determine which court should decide the case.

The general rule is that the first-filed petition will determine the venue in which the case will be heard. Section 2112(a) of Title 285 provides:

"If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency, board, commission, or officer concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted."

Although the filing of the record is not determinative of where venue lies, proceedings are, as a practical matter, rarely transferred from the court where the record has been filed.6

Under Rule 15(a) of the Federal Rules of Appellate Procedure, a petition for review need only include the name of the party seeking review and a designation of the respondent and the order or parts

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thereof to be reviewed. Thus, without even knowing the precise contents of the order being challenged, attorneys can have petitions for review in-hand and ready to file as soon as the agency issues its order in a particular case.

The mechanical first-to-file principle is tempered somewhat by the rule that "[f]or the convenience of the parties in the interest of justice," the court in which the petition was first filed may transfer the proceedings to another court of appeals.7 However, as Professor McGarity has pointed out,8 no court has ever transferred a case to another circuit exclusively on this basis. This is because each party can generally articulate a plausible argument why a particular circuit is most convenient.

The first-to-file rule has engendered costly and, in the view of many, unseemly races to be the first on file with a petition to review. The futility and wastefulness of the race to the courthouse process is

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illustrated by the case of Tenneco Oil Company.9 On June 21, 1978, at 3:00 p.m., E.D.T., the Federal Energy Regulatory Commission ("FERC") issued an opinion denying an application for rehearing of an order relating to the transportation of natural gas. At about 3:02 p.m. on the date the order denying rehearing was issued, petitions for review were filed almost simultaneously in the Fifth and District of Columbia Circuits. The Fifth Circuit remanded the case to the Commission for findings as to which party filed first. FERC ordered an Administrative Law Judge to conduct any necessary proceedings and file a report.

The Administrative Law Judge followed FERC's instructions and held three days of hearings. During these proceedings, the races to the courthouse were reenacted at the District of Columbia Circuit and Fifth Circuit courthouses.

One of the petitioners, Tenneco, had a five-person "human chain" from FERC's offices on the first floor to a telephone on the second floor. At the other

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end of the phone, Tenneco had a two-person chain at the Fifth Circuit courthouse ready to file the petition for review when given the word. Another petitioner, Air Products, knowing the order was to be handed down at 3:00 p.m., filed a petition with the Fifth Circuit at 3:01.

Still another petitioner, the Public Service Commission of the State of New York, attempted to file a petition for review in the District of Columbia Circuit. The Public Service Commission similarly had human chains both at FERC and at the U.S. Court of Appeals for the District of Columbia Circuit. The Administrative Law Judge submitted a report containing estimated timings for the human chains of the different petitioners. The findings were adopted by FERC but rejected by the Fifth Circuit because findings were made "to the second" with respect to only one of the petitioners. On the second remand, the Administrative Law Judge found that Tenneco had won the race, but admitted that his decision was based more on speculation than on fact.

Another example is Southland Mower Co. v. U.S. Consumer Product Safety Commission, 600 F.2d 12 (5th Cir. 1979). There, the Consumer Product Safety Commission (the "Commission") issued certain safety

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standards for walk-behind power lawn mowers. After the standards were published in the Federal Register, but before the official promulgation time, Southland Mower Co. ("Southland") filed a petition for review in the Fifth Circuit and John O. Hayward (Hayward) filed a petition in the D.C. Circuit. Southland's petition was stamped 11:15 a.m. C.S.T. and Hayward's petition was stamped 12:15:10 a.m. E.S.T. At the time of signing and approval of the regulations, but again before the official time set for promulgation, Southland petitioned for review at 12:31 p.m. C.S.T. and Hayward petitioned for review at 1:32:20 p.m. E.S.T. On the official date of promulgation, Southland filed a petition stamped 11:00 a.m. C.S.T. in the Fifth Circuit and Hayward filed a petition stamped 12:01 p.m. E.S.T. in the D.C. Circuit. Southland thereafter moved in the Fifth Circuit for a determination of venue. The D.C. Circuit agreed to abide by the Fifth Circuit's determination.

The Fifth Circuit held that it was the appropriate forum for venue. The court first noted that all of the petitions filed before the effective date of the regulation were premature. As to the two filed at about the time of promulgation, the court determined that Southland won the race because its

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petition was stamped one minute earlier than Hayward's petition. As the court reasoned:


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