Part Three: Scope of Review

• Pages: 33-43

I. GENERAL

Except where a statute § 7provides otherwise, courts generally

review agency action according to the principles set forth below. These

principles collectively constitute a judicial gloss on § 706 of the APA,

although courts do not always describe them as such. In applying these

principles, a court should distinguish among the agency’s legal, factual,

and policy conclusions, because different standards of review apply to

each category.

If a particular challenge has not been properly preserved at the

administrative level, the reviewing court has discretion not to address

it. If the unpreserved challenge relates to an issue of fact or policy, the

court typically is not permitted to adjudicate it (see infra § VI).

II. STANDARDS OF REVIEW: STATUTORY ISSUES

A. In General

The court will set aside an agency action if it nds that the action

exceeds the authority granted, or violates limitations imposed, by a

federal statute. APA § 706(2)(C).

B. Determining Statutor y Requirements—

The Chevron Doct rine

Where Congress has delegated to an agency the power to speak

with the force of law, and the agency has, in the course of exercising

that power, interpreted ambiguity in the statute that it administers, the

reviewing court must afford some deference to the agency’s reasonable

33

PART THREE

SCOPE OF REVIEW

ADLAW Blackletter Final Proof.indd 33 9/5/13 10:44 AM