The Availability of Judicial Review
of Administrative Action
I. Methods of Obtaining Judicial Review
A party suing to obtain judicial review of federal administrative action must
establish (1) that the reviewing court has jurisdiction; (2) that a cause of action or
statutory authorization exists for the suit; (3) that sovereign immunity does not bar the
action; and (4) that venue is proper.
A. Jurisdiction.
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 in the courts of appeals. To establish the jurisdiction of the court,
the party seeking review must also demonstrate standing, which is separately addressed in
Section IV, infra.
B. Cause of Action.
Many specific statutes authorize judicial review of particular federal agency
action. In the absence of such a specific statute, sections 702-704 of the APA provide a
general cause of action for parties adversely affected or aggrieved by agency action for
which there is no other adequate remedy in court. Suits under specific statutes are
brought in the particular court specified by the applicable statute; suits under the
authorization in the APA are brought in federal district court.
Where no other statute provides a cause of action, parties may seek so-called
nonstatutory review by seeking equitable relief under a federal courts general equity
jurisdiction, declaratory relief under the Declaratory Judgment Act, 28 U.S.C.  2201, or
mandamus under 28 U.S.C.  1361.
C. Sovereign Immunity.
Under the longstanding officer suit fiction recognized in Ex parte Young, 209 U.S.
123 (1908), suits against government officers seeking prospective equitable relief are not
barred by the doctrine of sovereign immunity. Where applicable, section 702 of the APA
also waives the sovereign immunity of the federal government for actions in federal court
where the plaintiff is seeking relief other than money damages.
D. Venue.
Under the generally applicable venue statute, 28 U.S.C.  1391(e), venue is proper
for a suit against an officer, an agency, or the United States in any judicial district in
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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.
E. Enforcement Actions.
Except to the extent that prior, adequate, and exclusive opportunity for judicial
review is provided by law, the defendant in an enforcement action brought by the
government may obtain judicial review of the administrative action being enforced.
Statutes providing an exclusive avenue of pre-enforcement review of agency rules are
generally construed to permit review in enforcement proceedings of claims that the rules
are unconstitutional, exceed the agencys statutory authority, or are otherwise
substantively invalid under law.
II. Timing of Judicial Review
In general, a plaintiff seeking judicial review of administrative action must
demonstrate (1) that the agency action is final; (2) that administrative remedies required
by law have been exhausted; and (3) that the agency action is ripe for judicial review. In
cases where parties have not sought administrative action prior to suit, courts may invoke
the doctrine of primary jurisdiction to enable agency action prior to judicial decision.
A. Finality
The finality requirement is codified in APA  704, which provides that [a]gency
action made reviewable by statute and final agency action for which there is no adequate
remedy in a court are subject to judicial review. Agency action is final for APA
purposes if two conditions are met. First, the action must not be tentative or
interlocutory, but rather the consummation of the agencys decisionmaking. Second,
the action must determine rights or obligations, or create legal consequences.
The issuance of an administrative complaint does not satisfy the first condition
and is not considered final agency action. An agency decision that is subject to
discretionary review by the President and that is without direct consequences outside
the government does not satisfy the second condition and is also not considered agency
action.
An agency decision may be final even though the agency has labeled it informal
guidance or nonbinding where the agency treats the decision as binding for all
practical purposes.
Where an agency action is not final, a party may obtain review of the action in two
ways. First, the party may be able to seek so-called nonstatutory review outside of the
APA, but only if the agency action is clearly in excess of the agencys delegated powers
or the ongoing action plainly cannot result in a valid agency order. Otherwise, the party
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may obtain review of all preliminary, procedural or intermediate agency action or rulings
on the review of the final agency action.
B. Exhaustion of Administrative Remedies
For actions not brought under the APA, a party seeking judicial review must
exhaust all available and adequate administrative remedies, including intra-agency
appellate remedies, prior to seeking judicial review. Administrative remedies are
considered inadequate where the administrative body is biased or has predetermined the
issue, where the agency is not empowered to provide effective relief or where resort to the
administrative remedy may occasion undue prejudice to subsequent assertion of a court
action. In evaluating the adequacy of administrative remedies, the courts consider the
needs of the judiciary, needs of the agency for autonomy and for a fair opportunity to
apply its expertise, and the hardship to the plaintiff of denying review. The ordinary cost
of exhausting the administrative remedy is not sufficient hardship to justify holding an
administrative remedy inadequate.
For suits brought under the APA, the exhaustion requirement is largely subsumed
within the finality requirement of section 704; where agency action is final for purposes
of section 704, nonstatutory exhaustion requirements do not preclude review. 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).
In both APA and non-APA cases, the courts have applied exhaustion principles to
particular issues contained within a proceeding. Such issue exhaustion requirements
are based on an analogy to the rule that appellate courts will not consider arguments not
raised before trial courts and are enforced more stringently where the parties are expected
to develop the issues in an adversarial administrative proceeding. Judicially created
issue-exhaustion requirements are less appropriate, however, where a court is reviewing
the results of nonadversarial, informal agency hearings.
C. Ripeness
To determine whether agency action is ripe for judicial review, courts apply the
test announced in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), which requires
balancing (1) the fitness of the issues for judicial decision and (2) the hardship to the
parties of withholding court consideration. Agency rules affecting the primary conduct
of regulated parties are usually considered ripe for review in pre-enforcement actions
challenging promulgation of the rule. Recently, the Supreme Court has emphasized that,
in applying the Abbott test, courts should consider whether judicial intervention would
inappropriately interfere with further administrative action, a criterion further narrowing
the already thin gap between the ripeness and exhaustion doctrines. It is not clear
whether the ripeness requirement is based on an interpretation of statutory or
constitutional law, or on judicially-created prudential considerations.
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In APA cases,  704 grants judicial review only for final agency action for
which there is no other adequate remedy in a court. That requirement supplies another
basis for denying judicial review where an alternative remedy exists in court, and the
remedy is adequate in the sense that withholding court consideration will not impose
undue hardship on the parties.
D. Primary Jurisdiction
Primary jurisdiction applies when claims properly cognizable in court contain one
or more issues within the special competence of an administrative agency. In such cases,
the court enables a referral to the agency, staying further proceedings so as to give the
parties reasonable opportunity to seek an administrative ruling. In cases of mandatory
primary jurisdiction, an agency ruling is required, and the court cannot proceed with the
case until the agency has acted. In cases where an agency ruling is not required but the
court might benefit from the expertise of the agency, the court may make a referral but
also provide that, if the agency has not ruled after a certain time, the court will proceed
without the agency ruling.
In determining whether to invoke the doctrine of primary jurisdiction, courts
consider (1) whether the issues in a case implicate an agencys expertise or discretion, (2)
whether the issues need a uniform resolution that the agency is best situated to provide,
and (3) whether the referral to the administrative agency will impose undue delays or
costs on the litigants.
III. Reviewability of Administrative Action
The APA codifies a general presumption that final administrative action is
judicially reviewable. The APA recognizes, however, that Congress may, within
constitutional limits, preclude or restrict judicial review. Such restrictions include
situations where statutes expressly or impliedly preclude or limit review and where
matters are committed to agency discretion by law. The courts have generally required
clear and convincing evidence of a contrary legislative intent to overcome the general
presumption to judicial review.
A. Express Preclusion or Limitation of Review
Judicial review is unavailable where statutes expressly so provide. The Supreme
Court has never decided whether the power of Congress to preclude judicial review of
federal administrative action is in any way limited by the Constitution. However, in part
to avoid that question, the courts interpret statutes precluding judicial review of
administrative action not to preclude judicial review of constitutional claims.
Where Congress has restricted judicial review to particular times or courts, the
Supreme Court has enforced those restrictions, although frequently the Court has
emphasized that remaining avenues for judicial review are sufficient to resolve the issues
presented.
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B. Implied Preclusion or Limitation of Review
Statutory preclusion of judicial review need not be express; it may occur where
the structure of the statute as a whole provides the necessary clear and convincing
evidence of an intent to preclude review. Such implicit limitations on judicial review
have been found where judicial review by a particular group would severely disrupt a
complex and delicate administrative scheme and where review would create delay in a
statutory scheme designed for expeditious resolutions.
Congresss provision for special statutory review does not automatically imply
disapproval of other modes of review. Other avenues of review are foreclosed only if, in
the context of the entire legislative scheme, the existence of the circumscribed remedy
evinces a congressional purpose to bar agency action not within its purview from judicial
review.
C. Matters Committed to Agency Discretion
Judicial review under the APA is not available where agency action is
committed to agency discretion by law. This exception to the APAs general
presumption of review is very narrow. It is applicable in those rare instances where
statutes are drawn in such broad terms that in a given case there is no law to apply,
which encompasses cases where a statute is drawn so that a court would have no
meaningful standard against which to judge the agencys exercise of discretion.
This exemption from review under the APA encompasses an agencys decision in
allocating funds from a lump-sum appropriation and an agencys decision to fire an
employee where the agency has power to take such action deemed to be in the national
security interest of the United States.
Pursuant to Heckler v. Chaney, 470 U.S. 821 (1985), agency decisions declining
to initiate enforcement actions presumptively fall within the APAs committed to
agency discretion category and are not reviewable unless Congress has supplied
sufficient standards to guide review in a particular case. The presumption articulated in
Chaney is based on judicial respect for prosecutorial discretion and for an agencys
discretion in allocating its resources. However, where an agency refusal to act is based on
statutory interpretation, the agencys inaction can usually be reviewed because there is
law to apply in such situations. Also, the Chaney presumption is not applicable to
agency decisions outside of the enforcement context, such as agency refusals to initiate
rulemaking. In such situations, a party may invoke APA  706(1) and request a court to
compel agency action unlawfully withheld or unreasonably delayed. The scope of
review in such case is generally quite deferential.
The committed to agency discretion exception to review does not preclude
review of constitutional challenges.
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