Judicial Review of Agency Action

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 (APA). 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. 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 1-257 (ABA, 2d ed. 2015). For a summary of the law, see ABA Section of Admin. Law & Regulatory Practice, A Blackletter Statement of Federal Administrative Law 31–66 (2d ed. 2013).

Section 701 embodies the basic presumption that judicial review is available as long as no statute precludes such relief or the action is not one committed by law to agency discretion. See, e.g., Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); Heckler v. Chaney, 470 U.S. 821, 826 (1985). Preliminary or interlocutory actions are ordinarily reviewable only on review of the final agency action. See, e.g., Ass’n of Nat’l 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 Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 78–79 (D.C. Cir. 1984).

Section 702 governs the issue of who may challenge an agency action. It sets forth the general principle that a person suffering a legal wrong or who is adversely affected or aggrieved by agency action is entitled to judicial review of that action. The phrase “legal wrong” 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.

Section 703 deals with the form and venue of the judicial review proceeding. Briefly, there are three types of review proceedings:

• “Statutory review”—a review proceeding specifically provided by statute 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; and
• A civil or criminal enforcement proceeding instituted by the government or possibly by a private party that involves the validity of agency action.

Where a statutory proceeding is provided, such review is undertaken frequently, though not always, in the courts of appeals. Nonstatutory review proceedings and enforcement 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 proceeding except where a prior opportunity for judicial review was adequate and expressly or impliedly exclusive.

Section 704 provides that “agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” The Supreme Court’s summary of the law of finality in Bennett v. Spear, 520 U.S. 154, 177–78 (1997) is now the widely cited test:

As a general matter, two conditions must be satisfied for an agency action to be “final”: First, the action must mark the “consummation” of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”

For suits brought under the APA, the exhaustion-of-administrative-remedies requirement is largely subsumed within the finality requirement of § 704. Where agency action is final for purposes of § 704, nonstatutory exhaustion requirements do not preclude review. Section 704 makes clear that, unless expressly required by statute, a party seeking review of otherwise final agency action pursuant to the APA need not pursue (1) any process for agency reconsideration of its decision or (2) any intra-agency appeals (except where the agency has, by rule, required exhaustion of the appeal and provided that the agency action is inoperative during the time of the appeal). See Darby v. Cisneros, 509 U.S. 137 (1993).

Agency action under the APA “includes the whole or a part of any agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13) (2012).

Section 705 authorizes a reviewing court to postpone the effectiveness of agency action or preserve the status or rights affected by an agency’s order pending completion of judicial review proceedings. The standards for deciding requests for stays of agency action are set out in Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C. Cir. 1958), as elaborated by the court’s decisions in Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977), Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985), and Cuomo v. NRC, 772 F.2d 972 (D.C. Cir. 1985). Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), may have rendered the prevailing “sliding-scale” test into something more akin to an independent, conjunctive factor test. At the very least, Winter stands for the proposition that a plaintiff cannot readily compensate for a deficient showing of irreparable injury with a strong showing of likelihood of success on the merits. See Guttenberg v. Emery, 26 F. Supp. 3d 88, 93 (D.D.C. 2014) (citing, among other cases, Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014)).

Section 706 sets forth the scope of review of agency actions. The case law on the scope of review is rich and varied and cannot easily be summed up. In general, the scope of review depends on the nature of the agency determination under challenge. Agency conclusions on questions of law are reviewed de novo. When a court reviews an agency’s construction of the statute it administers, the court is required to uphold Congress’s intent where Congress has directly spoken to the precise statutory question at issue. If the statute is silent or ambiguous with respect to the specific issue, however, the agency’s interpretation of the statute must be upheld if the agency’s construction of the statute is “permissible.” See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Chevron deference is only applicable in situations when the agency’s interpretation was made through formal proceedings carrying the force of law, such as adjudications or notice-and-comment rulemaking. See United States v. Mead Corp.; Christensen v. Harris Cty., 529 U.S. 576 (2000). In other informal circumstances, however, it is still proper to give some lesser deference to the agency’s interpretation. Nevertheless, the Supreme Court has said some issues are of such importance that it would be improper to assume Congress intended to delegate the decision to the agency, thereby requiring the court to determine the statutory meaning on its own without any deference to the agency. See, e.g., King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015).

Agency exercises of judgment or discretion are reviewed under the “arbitrary, capricious, abuse of discretion” standard. Under this standard, an agency determination will be upheld if it is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by statute. The agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choices made. A court is not to substitute its judgment for that of the agency. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–43 (1983). In applying the arbitrary-and-capricious test, the courts have reversed agency actions on the following bases:

1. Reliance on impermissible factors;
2. No reasonable relationship to statutory purposes or requirements;
3. Inadequate factual premises;
4. Unsupported by any reasoning or based on seriously flawed reasoning;
5. Failure to consider key aspects of the issue presented;
6. Unexplained inconsistency with prior actions;
7. Failure to consider alternative solutions;
8. Failure to respond to relevant arguments or comments; or
9. Disproportionate sanctions.

See A Guide to Judicial and Political Review of Federal Agencies at 181–95.

Agency determinations of fact are reviewed under the “substantial evidence” test when the determination is reviewed on the record of an agency hearing required by statute. See Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 618–21 (1966) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951)). Otherwise, factual determinations are also subject to the arbitrary or capricious standard, except in unusual cases where the facts may be subject to trial de novo by the reviewing court. However, the courts themselves have difficulty in applying the fine distinction between the arbitrary or capricious and the substantial evidence tests. The tests converge where an agency’s determination is based on a mix of factual and judgmental conclusions, see, e.g., Amoco Oil Co. v. EPA, 501 F.2d 722, 739–41 (D.C. Cir. 1974), and may be identical where an agency’s factual support is concerned. See Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 745 F.2d 677 (D.C. Cir. 1984)).

Section 706 contains a rule of harmless error. A court will not overturn an agency’s decision even if the agency committed some error unless the error was genuinely harmful or prejudicial. See Dolcin Corp. v. FTC, 219 F.2d 742 (D.C. Cir. 1954), cert. denied, 348 U.S. 981 (1955).

Illustrative Statutory Provision

The Administrative Orders Review Act (28 U.S.C. §§ 2341–2351) is a special statutory provision governing review of the actions of several different agencies. It provides for review in the courts of appeals for final orders of the Federal Communications Commission, Federal Maritime Commission, Maritime Administration, and Surface Transportation Board, and certain final orders of the Secretaries of Agriculture, Energy, Housing and Urban Development, and Transportation. It also specifies the procedure for instituting such review proceedings. Venue of the proceedings is in the judicial circuit where the petitioner resides or has its principal office or in the Court of Appeals for the District of Columbia Circuit (28 U.S.C. § 2343).

The “orders” that may be reviewed under the Administrative Orders Review Act include final orders in adjudicative proceedings and orders promulgating agency rules of general applicability. See Gage v. U.S. Atomic Energy Comm’n, 479 F.2d 1214, 1218–19 (D.C. Cir. 1973); United States v. Storer Broad. Co., 351 U.S. 192 (1956). However, because under 28 U.S.C. § 2344 a review proceeding may be initiated by “any party aggrieved by the final order,” some courts have held that a party who did not participate in the administrative proceeding resulting in the order may not seek review under the Administrative Orders Review Act. Gage, 479 F.2d at 1217–18.

Section 2344 provides that review must be sought within 60 days of the entry of the agency order about which a person complains. Failure to seek judicial review within 60 days renders a request for review untimely. See B.J. McAdams, Inc. v. Interstate Commerce Comm’n, 551 F.2d 1112 (8th Cir. 1977). This requirement can create problems with respect to persons seeking relief from a rule some time after its issuance. Where a dispute over a rule arises after its issuance, some courts will deem the 60-day period to run from the agency’s denial of the party’s request for amendment or waiver of the rule, rather than from the issuance date. See Pub. Citizen v. NRC, 901 F.2d 147, 152–53 & n.1 (D.C. Cir. 1990).

Sovereign Immunity

For many years, proceedings for nonstatutory review were subject to possible dismissal on the grounds that the government had not consented to be sued. The case law on the availability of the sovereign immunity defense was inconclusive, but a careful pleader could usually bring his case within one of the recognized exceptions to the doctrine. In 1976, in response to recommendations from ACUS and the American Bar Association, Congress enacted Pub. L. No. 94-574, which amended 5 U.S.C. § 702 to abolish the defense of sovereign immunity in any action in a court of the United States seeking relief other than money damages and based on a claim that an agency or officer acted or failed to act in an official capacity or under color of legal authority. The purpose of Pub. L. No. 94-574 was to abolish the technical defense of sovereign immunity in proceedings for nonstatutory review, Food Town Stores, Inc. v. EEOC, 708 F.2d 920, 922 (4th Cir. 1983), cert. denied, 465 U.S. 1005 (1984)), and not to eliminate other, more substantive limitations on judicial review, such as the plaintiff’s lack of standing or failure to exhaust administrative remedies, or lack of ripeness for review of the action in question. Pub. L. No. 94-574 also eliminated several other technical obstacles to suits for judicial review.

Jurisdiction

Where the relevant statute expressly provides for judicial review in a particular court or courts, the statute itself operates as a grant of subject matter jurisdiction to the specified courts. In 1977, the Supreme Court held that the APA (5 U.S.C. § 702) was not itself a grant to the federal district courts of jurisdiction over review proceedings, resolving a longstanding conflict of views. Califano v. Sanders, 430 U.S. 99 (1977). Consequently, the jurisdictional basis for proceedings for review other than those expressly provided for by statute must be found elsewhere, such as chapter 85 of title 28 of the U.S. Code, which describes the jurisdiction of United States district courts. However, this is generally not an issue, because § 1331 of title 28, which grants the district courts original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States, provides an adequate basis for substantially any review proceeding challenging agency action. Prior to 1976, § 1331 could be invoked only when the amount in controversy was at least $10,000. However, Pub. L. No. 94-574, the statute that abolished the sovereign immunity defense, also eliminated the jurisdictional amount in actions against the United States or its officers; in 1980, the jurisdictional amount was deleted in all cases under § 1331.

In the Federal Courts Improvement Act of 1982 (Pub. L. No. 97-164) Congress authorized any federal court without jurisdiction over a civil action that is filed with it (including a petition for review of agency action) to transfer the action to a court where such cases could have been brought in the first instance, if it is in the interest of justice to do so. 28 U.S.C. § 1631 (2012). See generally Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 750 F.2d 81, 84–85 (D.C. Cir. 1984).

Forum Selection

28 U.S.C. § 2112 governs the procedures for filing the record on review by the agency in the courts of appeals and the resolution of conflicts where proceedings have been instituted in two or more courts of appeals with respect to the same agency order. Section 2112(a) provides that the agency shall file the record (or, if local court rules permit, a certified list of the materials comprising the record) in a designated court of appeals. If only a single petition for review is filed within 10 days after issuance of an agency’s order, the agency shall file the record in that court of appeals notwithstanding the subsequent institution of any other court proceedings for review of the same order. If two or more petitions for review of the same agency order are filed in different courts of appeals within ten days after issuance of the agency’s order, the agency shall notify the judicial panel on multidistrict litigation, which shall, by means of random selection, designate one court of appeals from among the courts in which petitions were filed to hear the case; the panel shall consolidate all petitions for review in that court and the agency shall thereafter file the record in the designated court. In all other circumstances, the agency shall file the record in the court of appeals in which proceedings with respect to the order were first instituted. The random selection provisions in § 2112(a)(3) were established by Pub. L. No. 100-236 to implement ACUS Recommendation 80-5, Eliminating or Simplifying the “Race to the Courthouse” in Appeals from Agency Action.

Section 2112(a)(5) requires all courts in which proceedings are instituted, other than the court in which the record is filed, to transfer those proceedings to the court in which the record is filed. The section nonetheless authorizes the court in which the record is filed to transfer all proceedings to any other court of appeals for the convenience of the parties and in the interest of justice.

Bibliography

ACUS Recommendations

• 2021-5 Clarifying Statutory Access to Judicial Review of Agency Action