Reviewability

• Pages: 109-114
• Author: Richard J. Pierce, Jr.

109

Chapter 7

REVIEWABILITY

A. Presumption of Reviewability

Most statutes that authorize an agency to act also provide

explicitly that final actions taken by the agency are (o r are not)

subject to judicial review, but sometimes Congress is silent o r

ambiguous with respect to the availability of judicial review of a class

of agency actions. In its landmark 1967 opinion in Abbott

Laboratories v. Gardner,

1

the Supreme Court announced that a

presumption of reviewability applies to all agency actions. The Court

attributed the presumption to the Administrative Procedure Act

(APA).

The Admini strative Procedure Act . . . em bodies the basic

presumption of judicial review. . . . So long as no statute

precludes such relief or the action is not one committed to

agency discretion. . . . The Administrative Procedure Act

provides specifically not only for review of “agency action

made reviewable by statute” but also for review of “final

agency action for which there is no other adequate remedy

in a court,” . . . [O] nly upon a showing of “clear and

convincing evidence” of a contrary legislativ e intent should

courts restrict access to judicial review.

Abbott d id no t actually involv e a reviewability issue. The

applicable statute, the Food, Drug & Cosmetics Act, explicitly

provided for review of the legislative rule that Abbott sought to

challenge. Until the Court decided Abbott, however, agency rules

were not generally considered ripe for judicial review unless and until

the rule was applied. In Abbott, the Court chang ed the ripeness

doctrine in significant ways that had the effect of rendering a high

proportion of agency rules ripe for review in an abstract, pre-

enforcement context. Abbott’s importan t role with respect to the law

of ripeness is discussed in § 8C.

The Court applied its newly-announced presumption of

reviewability for the first time in the context of an actual

reviewability dispute in its 1971 opinion in Citizens to Preserve

Overton Park v. Volpe.

2

In Overton Park, the Court held reviewable

a decision of the De partment of Transportation to provide federal

funding for a section of an interstate highway that the petitioner

1

387 U.S. 136 (1967).

2

401 U.S. 402 (1971).