Part Four: The Availability of Judicial Review of Administrative Action

• Pages: 45-66

I. OVERVIEW OF PREREQUISITES

TO JUDICIAL REVIEW

A. Statutory Basis for Subject Matter Jurisdiction and Venue

The APA itself does not provide jurisdiction in suits seeking review

of federal administrative action, but the federal-question statute, 28

U.S.C.§1331, generally does. General federal-question jurisdiction

in district court does not apply, however, where special jurisdictional

statutes such as the Hobbs Act, 28 U.S.C.§2342, provide exclusive

jurisdiction for review of specied classes of cases in the courts of

appeals.

Under the generally applicable venue statute, 28 U.S.C. § 1391(e),

venue is proper for a suit against an ofcer, an agency, or the United

States “in any judicial district in which: (1) a defendant in the action

resides, or (2) the cause of action arose, or (3) any real property

involved in the action is situated, or (4) the plaintiff resides if no real

property is involved in the action.” This is a default provision that may

be superseded by venue provisions in a special jurisdictional statute.

B. Waiver of Sovereign Immunity

Section 702 of the APA waives sovereign immunity of the federal

government for judicial review of agency action where the plaintiff is

seeking relief other than money damages. This waiver applies regard-

less of whether a petitioner invokes the APA’s cause of action or some

other cause of action. It also permits a suit seeking a nancial award

that does not technically constitute “money damages.”

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PART FOU R

THE AVAILABILITY OF JUDICIAL REVIEW

OF ADMINISTRATIVE ACTION

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A claimant seeking money damages from the federal government

must invoke a waiver of sovereign immunity other than § 702. Exam-

ples of such waivers include (a) provisions in agency enabling acts

that authorize an agency to “sue and be sued”; (b) the Federal Tort

Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–80, which waives sover-

eign immunity for certain tort claims; and (c) the Tucker Act, 28 U.S.C.

§ 1491, which applies, most importantly, to contract and takings claims.

C. Ofcial Immunity

A suit against an agency ofcial in her ofcial capacity is function-

ally identical to a suit against the government and is subject to the

same principles of sovereign immunity.

A suit against an agency ofcial in her personal capacity implicates

a different set of immunity doctrines. As injunctive relief is generally

available directly against the government under § 702 of the APA, the

primary signicance of personal-capacity suits is that they create a

potential path for plaintiffs to seek money damages.

The Federal Employees Liability Reform and Tort Compensa-

tion Act of 1988 (the “Westfall Act”) provides that federal ofcials are

immune from common-law tort liability for actions taken within the

scope of their employment. 28 U.S.C. § 2679(b)(1). Where the attorney

general certies that the defendant was acting within the scope of her

employment, the United States is substituted as defendant. 28 U.S.C.

§ 2679(d)(1). Whether the United States has waived sovereign immu-

nity is then determined according to the terms of the FTCA.

The Westfall Act does not immunize ofcials from constitutional

torts or from claims that they have violated federal statutes that autho-

rize a cause of action. Executive ofcials, however, are generally

protected from suits for civil damages for such claims by the doctrine

of “qualied immunity.” This doctrine blocks claims for damages aris-

ing from an ofcial’s performance of discretionary functions so long

as the ofcial’s conduct did not violate clearly established statutory or

constitutional rights. A right is clearly established for the purpose of

this test if a reasonable ofcer should have understood that her conduct

A Blackletter Statement of Federal Administrative Law48

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