Judicial Review

• Author: Environmental Law Reporter
• Pages: 25-28

Judicial Review

5 U.S.C. §§701-706; 28 U.S.C. §§2341-2353

5 U.S.C.

Short Title

The provisions of sections 551 to 559 of this title and this chapter were originally

enacted by act June 11,1946, ch. 423, 60 Stat. 237, popularly known as the “Admin-

istrativeProcedure Act.” That Act was repealed as part of the general revision of this

titleby Pub. L. 89-554 and its provisions incorporated into sections 551 to 559 of this

title and this chapter.

§701.

Application; definitions

(a) This chapter applies, according to the provisions thereof, except

to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

(b) For the purpose of this chapter—

(1) “agency” means each authority of the Government of the

United States, whether or not it is within or subject to review by an-

other agency, but does not include—

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of the

United States;

(D) the government of the District of Columbia;

(E) agencies composed of representatives of the parties or of

representatives of organizations of the parties to the disputes de-

termined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of war or in

occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743, and

1744 of title 12; chapter 2 of title 41; subchapter II of chapter 471

of title 49; or sections 1884, 1891-1902, and former section

1641(b)(2), of title 50, appendix; and

(2) “person”, “rule”, “order”, “license”, “sanction”, “relief”, and

“agency action” have the meanings given them by section 551 of this

title.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 103-272, §5(a), July 5,

1994, 108 Stat. 1373.)

References In Text

Sections 1891-1902 of title 50, appendix, referred to in subsec. (b)(1)(H), were

omitted from the Code as executed.

§702.

Right of review

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. An action in a court of the

United States seeking relief other than money damages and stating a

claim that an agency or an officer or employee thereof acted or failed to

act in an official capacity or under color of legal authority shall not be dis-

missed nor relief therein be denied on the ground that it is against the

United States or that the United States is an indispensable party. The

United Statesmay be named as a defendant in any such action, and a judg-

ment or decree may be entered against the United States: Provided, That

any mandatory or injunctive decree shall specify the Federal officer or of-

ficers (by name or by title), and their successors in office, personally re-

sponsible for compliance. Nothing herein (1) affects other limitations on

judicial review or the power or duty of the court to dismiss any action or

deny relief on any other appropriate legal or equitable ground; or (2) con-

fers authority to grant relief if any other statute that grants consent to suit

expressly or impliedly forbids the relief which is sought.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94-574, §1, Oct. 21, 1976,

90 Stat. 2721.)

§703.

Form and venue of proceeding

The form of proceeding for judicial review is the special statutory re-

view proceeding relevant to the subject matter in a court specified by stat-

ute or, in the absence or inadequacy thereof, any applicable form of legal

action, including actions for declaratory judgments or writs of prohibi-

tory or mandatory injunction or habeas corpus, in a court of competent ju-

risdiction. If no special statutory review proceeding is applicable, the ac-

tion for judicial review may be brought against the United States, the

agency by its official title, or the appropriate officer.Except to the extent

that prior, adequate, and exclusive opportunity for judicial review is pro-

vided by law,agency action is subject to judicial review in civil or crimi-

nal proceedings for judicial enforcement.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94-574, §1, Oct. 21, 1976,

90 Stat. 2721.)

§704.

Actions reviewable

Agency action made reviewable by statute and final agency ac-

tion for which there is no other adequate remedy in a court are sub-

ject to judicial review. A preliminary, procedural, or intermediate

agency action or ruling not directly reviewable is subject to review

on the review of the final agency action. Except as otherwise ex-

pressly required by statute, agency action otherwise final is final

for the purposes of this section whether or not there has been pre-

sented or determined an application for a declaratory order, for any

form of reconsiderations, or, unless the agency otherwise requires

by rule and provides that the action meanwhile is inoperative, for

an appeal to superior agency authority.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392.)

§705.

Relief pending review

When an agency finds that justice so requires, it may postpone the ef-

fective date of action taken by it, pending judicial review.On such condi-

tions as may be required and to the extent necessary to prevent irreparable

injury, the reviewing court, including the court to which a case may be

taken on appeal from or on application for certiorari or other writ to a re-

viewing court, may issue all necessary and appropriate process to post-

pone the effective date of an agency action or to preserve status or rights

pending conclusion of the review proceedings.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.)

§706.

Scope of review

Tothe extent necessary to decision and when presented, the review-

ing court shall decide all relevant questions of law, interpret constitu-

tional and statutory provisions, and determine the meaning or applica-

bility of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably

delayed; and

(2) hold unlawful and set aside agency action, findings, and con-

clusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immu-

nity;

(C) in excess of statutory jurisdiction, authority, or limitations,

or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to

sections 556 and 557 of this title or otherwise reviewed on the re-

cord of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are sub-

ject to trial de novo by the reviewing court.

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ADMINISTRATIVEPROCEDURE 5 U.S.C. §701