Judicial Review of Agency
Action: Getting into Court
• Courts review a relatively small
percentage of agency decisions
•Courts set aside an even smaller
percentage of agency decisions
Judicial Review
• Whether the case may be taken to court?
• When judicial review is appropriate?
• What kind of review the court will perform
on the merits?
Judicial Review: The Whether
Issues
•
•
•
•
•
Jurisdiction
Form of action
Sovereign immunity
Preclusion
Standing
1. Judicial Review: Jurisdiction
• Recall your fundamentals!!
• Federal courts are courts of limited
jurisdiction
• Limits on that jurisdiction: Article III of the
Constitution
• State courts are usually courts of general
jurisdiction
Jurisdiction (cont’d)
• No one gets into the pearly gates of
federal court unless Congress says so
• Congress must have enacted a statutory
permission slip
• Every case filed in a federal court requires
a jurisdictional statute
• The statutes are found in U.S.C.
Jurisdiction
• Look in essentially two places for authority
• The enabling act
• The general jurisdictional statutes: 28
U.S.C. 1331 or 28 U.S.C. 1337
Jurisdiction (cont’d)
• Enabling act jurisdiction
• Defects in subject matter jurisdiction are
fatal: they may be raised ANY TIME IN
THE COURSE OF LITIGATION
• Most attorneys will invoke as many
jurisdictional predicates as plausibly relate
to their case
• Be careful because the enabling act
directs you to the court
Jurisdiction (cont’d)
• 28 U.S.C. 1331: The district courts shall
have original jurisdiction of all civil actions
arising under the Constitution, laws, or
treaties of the United States.”
2. Venue, Service of Process and
Proper Form of Action
•
•
•
•
Again, look to the statute for venue
If statute is silent, then 28 1391(e)
The defendant resides
A substantial part of the events or omissions
giving rise to the claim occurred, Or a substantial
part of property that is the subject of the action is
situated or
• The Plaintiff resides, if no real property is
involved
Service of Process
• Usually uncomplicated, but don’t forget it
• If against federal agency, then Rule 4:
Service on the USA in the district in which
the action is being brought and service by
certified or registered mail on the Attorney
General in Washington
• If against an agency or officer of the U.S.,
the plaintiff must serve the U.S. Attorney,
the Attorney General and the agency
Injunctive Relief
• Section 703 of the APA: any applicable
form of legal action including actions for
declaratory judgments or writs of
prohibitory or mandatory injunction or
habeas corpus.”
3. Sovereign Immunity
• Larson v. Domestic and Foreign
Commerce Corp. 337 U.S. 682 (1949):
permitting a lawsuit against an agency
official in his personal capacity, based on
“unconstitutional administration.”
• In 1976, Congress amended Section702
of the APA to eliminate the defense of
sovereign immunity: Plaintiffs seeking
“other relief”
Sovereign Immunity
• Seeking money damages—Bivens v. Six
Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971):
But recovery is only against the
employees and may not be satisfied out of
the federal treasury.
4. Preclusion
• What if there is a statute outside the APA
that expressly prohibits a court from
reviewing an agency decision?
• Most statutory preclusions appear on the
face of the statute
• VA used to have a blanket preclusion
Preclusion of Action Committed to
Agency Discretion
• Section 701
• Section 701(a)(2): committed to agency
discretion preclusion
• Section 706 review for “abuse of
discretion”
Committed to Agency Discretion
• Whether broad agency discretion already
exists?
• The expertise and experience necessary
to understand the subject matter
• The managerial nature of the agency
• The propriety of judicial intervention and
the ability of a court to insure correct
results
Committed to Agency Discretion
• The need for informality and speed in
agency decisions; and/or
• Whether other controls on agency
discretion exist?
OVERTON PARK
• Two applicable statutory provisions:
1. the Department of Transportation
should consider alternatives to building the
highway through the park
AND
2. Any decision to build through the
park should include thorough planning to
minimize environmental disruptions
Discretion to take no Agency Action
1. Discretion Not to Make a Rule
2. D.C. Circuit suggests now that agency
refusals to make a rule are not entitled to
any presumption of non-reviewability
2. Discretion Not to take
Enforcement Action
• Agency refusals to pursue enforcement
cases are not reviewable
• Thus, the presumption to be applied in
cases of agency refusal to pursue
enforcement actions is just the opposite of
the Overton Park presumption
• Any agency’s refusal to take enforcement
action is presumptively NOT reviewable
5. Standing
• Springs from the case and controversy
requirement in Article III, Section 2 of the
U.S. Constitution
• Baker v. Carr, 369 U.S. 186 (1962):
“personal stake in the outcome” test
• This test is the bottom line for federal court
standing
• Minimum showing necessary for a plaintiff
to survive a motion to dismiss
Staying in Court: Intermediate
Issues
• Does the agency need to take a look at
the dispute before you go to Court?
• If yes, better get this resolved before go to
Court, or ….
• Have you exhausted administrative
remedies?
• Is your matter ripe for resolution?
Judicial Review: On the Merits
• The final stage of judicial review
• Read Section 706
The 706 Options
• A court has the power to “decide all
relevant questions of law, interpret
constitutional and statutory provisions and
determine the meaning or applicability of
the terms of an agency action.”
Court review: Options
• Arbitrary and capricious
• An abuse of discretion
• Or otherwise not in accordance with the
law; or is
• Contrary to constitutional right, power,
privilege or immunity, or
• In excess of statutory jurisdiction, authority
or limitations; or
• Short of statutory right OR
Court review: Options
• Without observation of procedure required
by law;
• Unsupported by substantial evidence [in a
556, 557 case];
• Unwarranted by the facts [in a de novo
court proceeding].
Overton
• Provides an understanding of how the
Court with deal with agency action that is
neither rulemaking nor formal adjudication
• Explains parameters of APA Section
701(a)(2)(action committed to agency
discretion and thus precluded from judicial
review)
• Says a lot about Section 706
Overton (cont’d)
• Reviewing court is required to make a
through examination of the entire record
• “Hard look” doctrine
• “Hard look” doctrine flows from Section
706--obligates a court to “review the whole
record”
• What does this mean? The entire record?