Judicial Review of Agency Action

AuthorWilliam Funk - Jeffrey S. Lubbers
Pages173-194
173
JUDICIAL REVIEW OF AGENCY A CTION 2
Judicial
Review of
Agency
Action
173
Citations:
5 U.S.C. §§ 701-706 (2012), originally enacted as Administrative Proce-
dure Act § 10; significantly amended by Pub. L. No. 94-574, 90 Stat. 2721; 28
U.S.C. §§ 1331, 1631, 2112, 2341–2351 (2012).
Overview:
APA Provisions. The principal statutory authorities governing judicial
review of agency action are 5 U.S.C. §§ 701–706, which codify section 10 of
the Administrative Procedure Act. (The APA’s text may be found in the Appen-
dix 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 Michael Herz, Richard Murphy,
and Kathryn Watts, eds., A Guide to Judicial and Political Review of Federal
Agencies, 2nd Ed. 1-257 (A.B.A., 2015). For a summary of the law, see Sec-
tion of Administrative Law and Regulatory Practice, American Bar Associa-
tion, A Blackletter Statement of Federal Administrative Law 31–66 (2d ed.
2013).
Section 701 embodies the basic presumption that judicial review is avail-
able as long as no statute precludes such relief or the action is not one commit-
ted by law to agency discretion. Abbott Laboratories v. Gardner, 387 U.S. 136,
140 (1967); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410
1ATTORNEY GENERALS MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 93 (1947).
174 JUDICIAL REVIEW OF AGENCY A CTION
2
(1971); Heckler v. Chaney, 470 U.S. 821, 826 (1985). Preliminary or inter-
locutory actions are ordinarily reviewable only on review of the final agency
action. See, e.g., Ass’n of National Advertisers, Inc. v. FTC, 565 F.2d 237 (2d
Cir. 1977). In those situations “[W]here a statute commits review of agency
action to the Court of Appeals, any suit seeking relief that might affect the
Circuit Court’s future jurisdiction is subject to exclusive review in the Court of
Appeals.” See Telecommunications Research & Action Center v. FCC (TRAC),
750 F.2d 70, 78–79 (D.C. Cir. 1984).
Section 702 is designed to govern the issue of who may challenge agency
action. It sets forth the general principle that a person suffering a legal wrong
or adversely affected or aggrieved by agency action is entitled to judicial re-
view of that action. The phrase “legal wrong” merely connotes those wrongs
that statutes or court decisions identify as constituting grounds for judicial
review. The determination of who is “adversely affected or aggrieved” reflects
judicial evolution of the law of standing; the courts make their determination
based on constitutional and statutory requirements.2
Section 703 deals with the form and venue of the judicial review proceed-
ing. Briefly, there are three types of review proceedings:
“Statutory review”—a review proceeding specifically provided by stat-
ute for the agency action in question (e.g., a proceeding to review 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 govern-
ment 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 proceedings and en-
forcement proceedings are almost invariably brought in the U.S. district courts.
Where there is an adequate statutory review provided, a party may not seek
nonstatutory review. However, review is available in an enforcement proceed-
ing except where a prior opportunity for judicial review was adequate and
expressly or impliedly exclusive.3
Section 704 provides that “agency action made reviewable by statute and
2Id. at 96.
3Id. at 99-100.

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