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The ACUS Sourcebook of
Federal Judicial Review Statutes

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Administrative Conference of the United States

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Jonathan R. Siegel

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U NIT E D S

SOURCEBOOK
OF FEDERAL JUDICIAL REVIEW STATUTES
Jonathan R. Siegel
Professor of Law
F. Elwood & Eleanor Davis Research Professor of Law
The George Washington University Law School

This report was prepared for the Office of the Chairman of the Administrative Conference of
the United States. It does not necessarily reflect the views of the Office of the Chairman or the
Conference (including the Conference’s Council, committees, or members).

Administrative Conference of the United States

SOURCEBOOK
OF FEDERAL JUDICIAL REVIEW STATUTES

Jonathan R. Siegel

About the Administrative Conference of the
United States

The Administrative Conference of the United States (ACUS) is an independent federal agency within the executive branch whose statutory mission
is to study the efficiency, adequacy, and fairness of federal administrative
processes. ACUS is charged with promoting effective public participation in
the rulemaking process and making improvements to the regulatory process
by reducing unnecessary litigation and improving the use of science and the
effectiveness of applicable laws.
ACUS has issued more than 200 recommendations to improve rulemaking, adjudication, and other administrative processes since its inception in
1968. Many have resulted in reforms by federal agencies, the President, Congress, and the Judicial Conference of the United States. Recommendations are
issued by the Assembly, whose members include a Chairman appointed by
the President and confirmed by the Senate; ten presidential appointees who,
together with the Chairman, comprise the Council; 50 senior federal officials;
and 40 academics, practitioners, and other private-sector experts.
The work of ACUS is supported by a small, full-time staff in the Office
of the Chairman. In addition to supporting the consideration and adoption
of recommendations, the Office of the Chairman conducts and commissions
research, publishes reference guides, organizes public events and interagency
roundtables, provides nonpartisan advice to agencies and Congress, and
undertakes other activities to arrange for the interchange of information useful
in improving administrative procedure.

The ACUS Sourcebook of Federal Judicial Review Statutes

v

Board of Advisors
for the Sourcebook of
Federal Judicial Review Statutes

Sharon Buccino
Senior Director, Land Division,
Nature Program
Natural Resources Defense Council
Betty Jo Christian
Partner (retired)
Steptoe & Johnson LLP
Lisa Heinzerling
Justice William J. Brennan, Jr.,
Professor of Law
Georgetown University Law Center
Michael Eric Herz
Arthur Kaplan Professor of Law
Benjamin N. Cardozo School of Law
Kristin E. Hickman
Distinguished McKnight University
Professor & Harlan Albert Rogers
Professor of Law
University of Minnesota Law School
Ronald M. Levin
William R. Orthwein Distinguished
Professor of Law
Washington University in St. Louis
School of Law

Jonathan Sallet
Former General Counsel,
Federal Trade Commission
Peter M. Shane
Jacob E. Davis and Jacob E. Davis II
Chair in Law Emeritus
The Ohio State University, Moritz
College of Law
Kate Todd
Managing Partner, Washington,
D.C. Office
Ellis George Cipollone O’Brien
Annaguey LLP
Andrew N. Vollmer
Senior Affiliated Scholar,
Mercatus Center
George Mason University
Allison M. Zieve
Director
Public Citizen Litigation Group

Richard J. Pierce, Jr.
Lyle T. Alverson Professor of Law
The George Washington University
Law School
The ACUS Sourcebook of Federal Judicial Review Statutes

vii

Chairman’s Foreword

T

he inspiration for this book came from Judge Henry Friendly’s observation some sixty years ago that the federal statutes providing for judicial
review of agency action looked like a “veritable jungle” “unworthy of
an ordered legal system.”1 They “create[d] pitfalls for the unwary practitioner
and undue interpretive burdens for the courts.”2 The jungle’s “weeds” had
“grown simply for lack of a gardener.”3 “Perhaps one will have been found,”
Judge Friendly hoped, in the then-temporary “Administrative Conference, if
the recommendation for its establishment on a permanent basis is accepted.”4
Just a few years after Judge Friendly wrote these memorable words, Congress established the Administrative Conference of the United States (ACUS)
on a permanent basis, and judicial review has occupied an important place on
its agenda ever since. All told, ACUS has issued several dozen recommendations on the subject. Some address review of particular agencies’ actions, others
agency action more generally. All but a few have been directed to Congress
rather than the courts.5 (See Appendix B.)
It was not until several years ago, though, that ACUS decided to undertake
an expedition into the “veritable jungle” of judicial-review statutes to inspect
all the weeds. The expedition began in earnest when ACUS established an
advisory board of distinguished practitioners and scholars (listed among the
front matter of this book) to advise it on what exactly to look for, and then
turned to Professor Jonathan Siegel, this book’s author, to work with its staff
to consider the board’s advice and establish a research plan.

1. Henry J. Friendly, The Gap in Lawmaking—Judges Who Can’t and Legislators Who Won’t,
63 Colum. L. Rev. 787, 796 (1963).
2. Id.
3. Id.
4. Id. n.55.
5. See generally Matthew Lee Wiener, Introduction: The Administrative Conference and the
Federal Judiciary, 83 Geo. Wash. L. Rev. 1142 (2015).
The ACUS Sourcebook of Federal Judicial Review Statutes

ix

ACUS staff and Professor Siegel agreed on an ambitious plan: to identify
every provision in the United States Code that provides for judicial review of
agency action (in particular, rules and orders, as those terms are commonly
understood in administrative law) and, for each, catalogue its most important
features (specification of court, venue, scope of review, review procedures, and
so forth). Several ACUS staffers worked for many months, in consultation with
Professor Siegel, to implement that plan. The results of their work appear on
the publicly available “Statutory Analysis Spreadsheet” that Professor Siegel
discusses on pages 2–11. It includes over 650 statutes and runs over 150 pages.
The remaining job (contemplated at the outset of this project) was for
Professor Siegel to draft a sourcebook—ACUS’s third in recent years.6 We asked
him to do four complementary things: first, identify the key features of statutes
governing review of “actions by multiple agencies under multiple statutes”
(which this book calls “general judicial review statutes”) and explain how they
relate to statutes governing review “only of actions by a specific agency or under
a specific statute” (which this books calls “specific judicial review statutes”);
second, draw useful generalizations from, and identify common problems
in, the specific judicial review statutes appearing on the “Spreadsheet”; third,
suggest associated reforms to existing, and provide advice on drafting new,
judicial review statutes; and fourth, identify the main procedural issues to
which Congress should attend when drafting specific judicial review statutes.
The book that follows does all these things, and does them with the
cogency, clarity, and brevity familiar to those who know Professor Siegel’s
scholarship. ACUS is pleased to offer the book to policymakers, federal judges,
and the public under its name. It does so with the necessary caveat that the
book’s recommendations are Professor Siegel’s alone. Only formal recommendations adopted by ACUS’s Assembly—that is, ACUS’s voting members sitting
together in plenary session—reflect ACUS’s official views.
Most of the book’s recommendations are technical. They do not call for
a wholesale reordering of our system of judicial review. That sort of reform is
seldom, if ever, ACUS’s ambition, whatever its merits and political viability in

6. See Jennifer L. Selin & David E. Lewis, Admin. Conf. of the U.S., Sourcebook of
United States Executive Agencies (2d ed. 2018); Michael Asimow, Admin. Conf. of
the U.S., Federal Administrative Adjudication Outside the Administrative Procedure Act (2019).
x

Chairman’s Foreword

any given context. But the recommendations are by no means unimportant,
especially not to hapless litigants and busy federal judges. They are directly
addressed to remedying (in existing statutes) and preventing (in future statutes) the very sorts of problems that Judge Friendly identified as “creat[ing]
pitfalls for the unwary practitioner and undue interpretive burdens for the
courts.” As Professor Siegel explains, “[m]any of the recommended improvements concern technical obstacles to the availability of judicial review,” and in
this respect, he adds, accord with a “decades-long line of ACUS recommendations regarding the availability of judicial review” (p. 6).7
ACUS has already adopted many of the book’s recommendations as its
own. In 2021, ACUS put a near-final draft of the book before its Judicial Review
Committee for consideration. The Committee reported a proposed recommendation that incorporated most of this book’s recommendations. (Those not
addressed in the recommendation were reserved for future consideration.) In
August 2021, ACUS’s Assembly adopted the Committee’s proposal, with only
minor amendments, as Recommendation 2021-5, Clarifying Statutory Access
to Judicial Review of Agency Action8 (Appendix A). Its first part provides advice
to Congress on drafting new or amending existing judicial review statutes; its
second part recommends that Congress enact a “general judicial review statute
that would cure problems in existing judicial review statutes.” Recommendation 2021-5 has been transmitted to Congress along with a proposed bill that
would implement it by amending Title 28 of the United States Code.
Recommendations aside, Congress will find this book to be an invaluable
guide whenever it decides, as the “Spreadsheet” shows it does often, to enact
specific judicial review statutes for new administrative programs rather than
relying on existing general judicial review statutes. It is a guide of the sort that
those familiar with ACUS’s work would expect. It is not, for the most part,
prescriptive. It is directed, rather, to identifying the common issues Congress
should address when drafting such statutes—in what court should it provide
for review? under what time limits? with what exhaustion requirements? and
so forth—so that its procedural choices are deliberate, informed, and clearly

7. See also Michael Herz, ACUS—And Administrative Law—Then and Now, 83 Geo. Wash. L.
Rev. 1217, 1230–33 (2015); Jonathan R. Siegel, ACUS and Suits Against Government, 83 Geo.
Wash. L. Rev. 1642 (2015).
8. 86 Fed. Reg. 53262 (Sept. 27, 2021).
The ACUS Sourcebook of Federal Judicial Review Statutes

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expressed. What procedural choices Congress makes in any given statute
will depend on considerations particular to the administrative program with
which it is associated. The book also offers guidance on drafting specific
review statutes so that, whatever procedural choices they reflect, they cohere
with existing review statutes. A summary of the guidance begins on page 103
in the form of a “Checklist for Congress.”
***
Professor Siegel acknowledges the many people who made this book
possible. I would like to join him in thanking them for their work, and I would
like to thank him for his. Its exemplary quality will be evident to readers of
this book. Not so evident, but surely as important, is the collegiality and professionalism with which he carried it out. I would also like to acknowledge the
important work of ACUS’s Judicial Review Committee—especially its Chair,
Kristin Hickman, and its members John Duffy, Ronald Levin, Alan Morrison,
and Allison Zieve—in drafting what became Recommendation 2021-5.
Matthew Lee Wiener
Acting Chairman, Vice Chairman, and Executive Director
Administrative Conference of the United States
January 2022

xii

Chairman’s Foreword

About the Author

J

onathan R. Siegel is a Professor of Law and the F. Elwood & Eleanor Davis
Research Professor of Law at The George Washington University Law
School. A graduate of Harvard College and Yale Law School, Professor Siegel clerked for Chief Judge Patricia M. Wald of the District of Columbia Circuit.
He served for four years as a member of the Appellate Staff, Civil Division, of
the U.S. Department of Justice, where he briefed and argued appellate cases
on behalf of the President and numerous other federal government officials
and agencies. He joined the George Washington University Law School faculty
in 1995. In the Fall of 2007, he served as Senior Legislative Fellow to United
States Senator Amy Klobuchar of Minnesota. In 2010 and 2011, Professor Siegel
served as the Research and Policy Director for the Administrative Conference of the United States. Professor Siegel’s interests include Federal Courts,
Administrative Law, Civil Procedure, and Intellectual Property, on which he
has authored numerous publications.

The ACUS Sourcebook of Federal Judicial Review Statutes

xiii

Acknowledgments

T

his Sourcebook would not have been possible without the outstanding
support and assistance I received from numerous ACUS members and
staff. At one point, all attorneys on the ACUS staff were engaged in the
task of identifying judicial review provisions in the United States Code. I gratefully acknowledge this assistance. I would particularly like to thank Frank
Massaro and Bobby Ochoa, the two ACUS Attorney Advisors who served as
Staff Counsel for this project, and also Director of Public and Interagency Programs Jeremy Graboyes, for their help with the coding schema and their work
on the coding itself, which produced the Statutory Analysis Spreadsheet. I am
also grateful to Mr. Ochoa and Mr. Graboyes for their thoughtful comments on
the initial draft of this Sourcebook. Other ACUS attorneys who contributed
to this project include Gisselle Bourns, Michael Cole (ACUS detailee), Todd
Phillips, Todd Rubin, Daniel Sheffner, Kenneth Simon, Alix Tindall-Webb,
and Gavin Young. I also wish to thank ACUS attorney Kazia Nowacki for
reviewing the final version of the manuscript and preparing it for publication.
I am grateful as well for the continuing encouragement I received from
Matt Wiener, who during this project served as the Executive Director, Vice
Chair, and Acting Chairman of ACUS. Encouragement and help also came
from ACUS Research Director Reeve Bull (who also provided very helpful
comments on the initial draft) and General Counsel Shawne McGibbon.
Finally, I thank the members of the project’s Board of Advisors who gave their
very useful advice at several stages of the project (especially Ron Levin, who
submitted numerous, detailed, thoughtful comments) and the members of the
ACUS Committee on Judicial Review (Kristin Hickman, Chair), who also provided valuable thoughts and advice regarding the project and particularly with
regard to potential ACUS recommendations growing out of this Sourcebook.
J.S.
December 2021

xiv

Administrative Conference of the United States

Table of Contents

I. Introduction: The ACUS Judicial Review Sourcebook Project.1
II. Goals of the Judicial Review Sourcebook Project . . . . . . . . . 5
A. Providing Data. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Recommending Improvements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

III. Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Identification of Judicial Review Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. Coding of Judicial Review Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
C. Analysis of Judicial Review Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
D. Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

IV. General Judicial Review Statutes . . . . . . . . . . . . . . . . . . . . 13
A. The Administrative Procedure Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1. The Relationship Between the APA and
Specific Judicial Review Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2. The APA’s Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
a) Section 701: Limitations on Review . . . . . . . . . . . . . . . . . . . . . . . . 16
b) Section 702: The Right of Review . . . . . . . . . . . . . . . . . . . . . . . . . . 19
c) Section 703: The Form of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . 21
d) Section 704: Which Actions are Reviewable. . . . . . . . . . . . . . . . . 23
e) Section 705: Preliminary Relief Pending Review. . . . . . . . . . . . . 25
f) Section 706: The Scope of Review . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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B. The Hobbs Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1. Covered Agencies and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2. The Right of Review; How, When, and Where to Seek Review. . . . . 32
3. Procedures for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
C. Other General Judicial Review Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . 35

V. Specific Judicial Review Statutes. . . . . . . . . . . . . . . . . . . . . 37
A. Redundant Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
1. Representative Redundancies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2. Is Redundancy Undesirable? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
B. The Time Within Which to Seek Review . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
1. Policy Considerations in Specifying the Time Limit. . . . . . . . . . . . . . 43
2. Specifying the Time Limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
a) Specifying the Length of Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
b) The Event that Starts the Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
C. The Court in Which to Seek Review. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
1. The Level of Court in Which to Seek Review. . . . . . . . . . . . . . . . . . . . 52
2. The Geographical Venue in Which to Seek Review . . . . . . . . . . . . . . 54
3. Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
D. The Mechanism by Which to Seek Review. . . . . . . . . . . . . . . . . . . . . . . . . . 59
1. The Style of the Document Used to Initiate Review . . . . . . . . . . . . . . 59
2. The Content of the Document Initiating Review. . . . . . . . . . . . . . . . . 62
3. Service of the Document Initiating Review. . . . . . . . . . . . . . . . . . . . . . 64
E. Relief Pending Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
F. Bond or Other Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
G. Expedition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
H. P
 rovisions Regulating Permitted Arguments
(“Issue Exhaustion” Provisions). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

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Administrative Conference of the United States

1. The Background Rule on Issue Exhaustion Requirements . . . . . . . . 73
2. Are Issue Exhaustion Requirements Desirable?. . . . . . . . . . . . . . . . . . 75
3. The Wording of Issue Exhaustion Requirement Provisions . . . . . . . 77
I. Provisions Relating to the Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
J. Provisions Prohibiting Review in Enforcement Proceedings. . . . . . . . . . . 81
K. Other Provisions Prohibiting Judicial Review. . . . . . . . . . . . . . . . . . . . . . . 85
L. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
1. Redundant Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
2. Effective Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
a) De Novo Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
b) Other Effective Variations on the Standard of Review. . . . . . . . 92
3. A
 pparent but Possibly Ineffectual Variations on the
Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
a) S pecifying Only Some of the APA Standards in an
Apparent Attempt to Limit the Scope of Review . . . . . . . . . . . . . 93
b) Other Variations that Might Appear to Limit Review. . . . . . . . . 97
c) Apparent Attempts to Expand Review. . . . . . . . . . . . . . . . . . . . . . 98
4. Implications of the Above Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . 100

VI. A Checklist for Congress . . . . . . . . . . . . . . . . . . . . . . . . . 105
VII. Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Appendix A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Appendix B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

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I
Introduction:
The ACUS Judicial Review Sourcebook Project

J

udicial review is a pervasive feature of administrative law in the United
States. After a federal administrative agency takes an action, an aggrieved
party may usually seek review of that action in a federal court.1 In most
cases, the court will determine whether the agency’s action complied with
substantive legal requirements,2 whether it followed required procedures,3 and
whether it was sufficiently rational.4 If the court determines that the agency
failed to meet these standards, the court may hold the action unlawful and
set it aside.5
Judicial review of federal administrative agency action traces its history
back to the founding of the nation.6 During its early history, and continuing
until the enactment of the Administrative Procedure Act (APA) in 1946,
judicial review often took place with little statutory guidance. As a result,

1. See, e.g., Abbott Lab’ys v. Gardner, 387 U.S. 136, 140 (1967) (referring to the “basic presumption of judicial review”); see also A Guide to Judicial and Political Review of Federal
Agencies 6, 15 (Michael E. Herz, Richard W. Murphy & Kathryn A. Watts eds., 2d ed. 2015)
[hereinafter Guide]; Section of Admin. L. & Regul. Prac., Am. Bar Ass’n, A Blackletter
Statement of Federal Administrative Law 49 (2d ed. 2013) [hereinafter Blackletter
Statement].
2. See 5 U.S.C. § 706(2)(A) (authorizing a court to set aside agency action that is “not in accordance with law”).
3. See id. § 706(2)(D) (authorizing a court to set aside agency action taken “without observance
of procedure required by law”).
4. See id. § 706(2)(A) (authorizing a court to side aside agency action that is “arbitrary” or
“capricious”).
5. Id. § 706(2).
6. Indeed, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), although best known for establishing that federal courts may review the constitutionality of federal statutes, id. at 176–80,
was also important to administrative law. The case held that courts may review the actions
of executive officers, even high officers such as the Secretary of State. Id. at 168–74. Federal
courts have reviewed the actions of executive officers and agencies ever since.
The ACUS Sourcebook of Federal Judicial Review Statutes

1

judicially developed, common-law doctrines play an important role in the
law of judicial review.7
The law of judicial review is also, however, governed by federal statutes.8
These statutes include both general judicial review statutes and specific judicial review statutes. As used in this Sourcebook, the term “general” judicial
review statute refers to a statute that governs judicial review of agency actions
at multiple federal agencies taken under multiple statutes. A “specific” judicial
review statute applies only to actions taken by a particular agency9 or only to
actions taken under a particular statute.10
The most prominent general judicial review statute is, of course, the APA,
which applies to nearly every agency in the federal government, and which
covers many aspects of administrative law, including judicial review.11 Another
important general judicial review statute is the Hobbs Act, which is not as
broadly applicable as the APA but governs judicial review of certain actions
of several federal agencies.
In addition to these and other general judicial review statutes, Congress
has passed hundreds of specific judicial review statutes. These statutes can
be found throughout the United States Code. They vary considerably. Some
comprehensively regulate judicial review procedures; others specify only a
single detail. Some govern review of only a specific type of agency action;
others broadly govern review of many different kinds of actions that a certain

7. See, e.g., John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113,
114–20 (1998); see also Guide, supra note 1, at 1; 1 Kenneth Culp Davis, Administrative
Law Treatise § 2:18, at 140 (2d ed. 1978); Louis L. Jaffe, Judicial Control of Administrative Action 329 (1965).
8. Guide, supra note 1, at 5–7; see Duffy, supra note 7, at 119–20 (identifying four areas “where
the law [of judicial review] is slowly evolving from a common-law method to a more rigorous
statutory method based on the APA”).
9. Specific judicial review statutes that apply only to actions of a particular agency may cover
multiple, different kinds of action taken by that agency, e.g., 47 U.S.C. § 402 (providing for
review of multiple, different kinds of actions taken by the Federal Communications Commission), or may be more specific still and apply only to a single, specific kind of action taken by
the agency, e.g., 15 U.S.C. § 1825(b)(2) (providing for judicial review of penalties imposed by
the Secretary of Agriculture pursuant to the Horse Protection Act of 1970).
10. A specific judicial review statute that provides for review only of actions taken under a
particular statute may provide for review of actions taken by multiple agencies under that statute. See, e.g., 33 U.S.C. § 1321(b)(6)(A), (G) (providing for review of penalties imposed under
the Clean Water Act by the Administrator of the EPA, the Secretary of Transportation, or the
Secretary of a department in which the Coast Guard is operating).
11. See 5 U.S.C. §§ 701–706.
2

Introduction

agency might take. Some do no more than redundantly restate rules that would
apply anyway; others provide for judicial review that notably differs from the
review that would exist under the background principles provided by a general
statute, such as the APA or by administrative common law.
The purpose of this Sourcebook is to undertake a comprehensive study
and analysis of all judicial review statutes in the United States Code. ACUS has
attempted to identify every provision in the United States Code that governs
judicial review of federal agency action. ACUS’s review has identified over
650 such provisions.12 This Sourcebook’s author and ACUS staff reviewed and
analyzed every such provision. The output of this project is twofold. One part
is a “Statutory Analysis Spreadsheet” that catalogues numerous characteristics
of each of the over 650 statutes governing judicial review.13 The spreadsheet
will quickly answer many questions about any given statute, such as: in which
court should review be sought? What is the time limit for seeking review? Must
the party seeking review post bond? Is the court obliged to expedite review?
The other output of the project is this Sourcebook. This Sourcebook is the
result of analyzing all the provisions for judicial review in the United States
Code and comparing and contrasting them. This Sourcebook attempts to
draw useful lessons from this comprehensive review. It identifies best practices
for crafting specific judicial review statutes. It also identifies ways in which
some specific judicial review statutes have, probably unintentionally, created
obstacles to judicial review. It provides recommendations as to how Congress
can avoid creating such obstacles. It concludes with a “checklist” of advice
to Congress with regard to the creation of specific judicial review statutes.14

12. The project did not attempt to identify or analyze review provisions not codified in the
United States Code.
13. Statutory Analysis Spreadsheet, Admin. Conf. of the U.S., available at https://www.acus.
gov/appendix/statutory-analysis-spreadsheet.
14. This Sourcebook takes its place alongside the ACUS Sourcebook of United States Executive
Agencies. David E. Lewis & Jennifer L. Selin, Admin. Conf. of the U.S., Sourcebook of
United States Executive Agencies (2d ed. 2018). That project comprehensively catalogued and analyzed all federal executive agencies. Like this Sourcebook, that one produced
comprehensive tabular information about the objects of its study and their characteristics and
a narrative report that put the tabular information in context.

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3

II
Goals of the Judicial Review
Sourcebook Project

I

n undertaking this project, ACUS seeks to serve two principal goals: (1)
identifying the salient characteristics of existing statutory judicial review
provisions and providing data that classifies them according to these characteristics, and (2) recommending improvements in existing judicial review
statutes and in the process by which new ones are drafted.

A. Providing Data
One key goal of this project is to provide data. As things stand, the numerous
statutes governing judicial review of federal administrative action are strewn
throughout the United States Code. No prior catalogue of them exists. Therefore, Congress, the courts, the executive, and private researchers have had
no easy way to discover the characteristics of such statutes. If, for example,
Congress were drafting a new specific judicial review statute and desired to
follow the typical pattern set by existing statutes, how would it know what that
typical pattern is? Currently, there is no easy way to tell.
The Statutory Analysis Spreadsheet that accompanies this Sourcebook
provides data that can address this kind of question. It displays numerous
characteristics of each existing specific judicial review statute in easily readable
format. For each statute, the spreadsheet allows the reader to tell at a glance
how long interested parties have to seek review, in which court they should
seek review, what mechanism they should use to seek review, whether they
must post bond, whether the court must expedite the proceedings, whether
parties may seek review in the context of an enforcement proceeding, and so
on. Researchers can use the data provided in the spreadsheet to determine the

The ACUS Sourcebook of Federal Judicial Review Statutes

5

characteristics of any particular specific judicial review statute and to identify
general trends and patterns in the characteristics of such statutes overall.

B. Recommending Improvements
Another goal of the project is to identify and recommend improvements
needed in judicial review statutes. Review of the hundreds of specific judicial
review statutes identified some problems with these statutes. Where necessary,
this Sourcebook recommends improvements.
Many of the recommended improvements concern technical obstacles to
the availability of judicial review. In recommending reforms that would eliminate these technical obstacles, this Sourcebook accompanies a decades-long
line of ACUS recommendations regarding the availability of judicial review.15
A central theme of these recommendations is the principle that the availability
of judicial review should turn on factors that serve rational policies. It should
not turn on factors unrelated to rational reasons why judicial review should
or should not be available.
This principle may seem obvious. However, as prior ACUS projects have
revealed, the availability of judicial review of agency action sometimes turns on
technicalities that bear no relation to rational policy. Such technical obstacles
proliferate in part because of the imbalance that often exists between counsel
who bring cases seeking judicial review of agency action and counsel who
defend such cases. Government counsel who defend challenges to agency
action are repeat players in the system, whereas counsel for plaintiffs challenging agency action may have less familiarity with the special doctrines
that apply in suits against government. As a result, government counsel may
succeed in getting courts to limit the availability of judicial review in ways that
make little or no policy sense.

15. See, e.g., Admin. Conf. of the U.S., Recommendation 2012-6, Reform of 28 U.S.C. § 1500, 78
Fed. Reg. 2939 (Jan. 15, 2013); Admin. Conf. of the U.S., Recommendation 82-3, Federal Venue
Provisions Applicable to Suits Against the Government, 47 Fed. Reg. 30706 (July 15, 1982);
Admin. Conf. of the U.S., Recommendation 80-5, Eliminating or Simplifying the “Race to the
Courthouse” in Appeals from Agency Action, 45 Fed. Reg. 84954 (Dec. 24, 1980); Admin. Conf.
of the U.S., Recommendation 69-1, Statutory Reform of the Sovereign Immunity Doctrine, 1
C.F.R. § 305.69-1 (1977); Admin. Conf. of the U.S., Recommendation 68-7, Elimination of
Jurisdictional Amount Requirement in Judicial Review, 1 C.F.R. § 305.68-7 (1977).
6

Goals of the Judicial Review Sourcebook Project

In such situations, ACUS plays a particularly important role. It is often
said that the federal government’s lawyers have a special duty to “seek justice” and should not simply try to win cases in any way possible.16 Still, even
government lawyers may feel a strong inclination to try to win cases. They
may, therefore, seek to have cases dismissed for technical reasons that serve
no rational policy. ACUS, however, does not litigate individual cases, and, in
addition, ACUS is designed to receive input from both the government and the
private sector. ACUS is therefore well positioned to uncover and recommend
elimination of irrational technical obstacles to judicial review. It has previously
recommended improvements to make judicial review better align with rational
policy. ACUS’s prior recommendations on this topic include, most notably,
ACUS Recommendation 69-1, Statutory Reform of the Sovereign Immunity
Doctrine, which recommended that Congress waive sovereign immunity
from suits for judicial review of agency action that sought relief other than
money damages.17 Congress’s implementation of this Recommendation in 1976
eliminated the need for the confusing and convoluted system of challenging
government action by fictionally pretending to sue a government officer.
This system was so encrusted with technicalities that even the Department of
Justice called it “bewildering” and recognized that its criteria failed “to bear
any necessary relationship to the real factors which should determine when
the Government requires special protection.”18
ACUS Recommendation 69-1 and its subsequent implementation did
not eliminate all barriers to judicial review of federal agency action. A suit for
judicial review may still be dismissed for lack of standing, failure to exhaust
administrative remedies, or numerous other non-merits reasons. The principle
that judicial review’s availability should turn on rational considerations does

16. E.g., Berger v. United States, 295 U.S. 78, 88 (1935) (“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”);
Gray Panthers v. Schweiker, 716 F.2d 23, 33 (D.C. Cir. 1983) (“There is . . . much to suggest that
government counsel have a higher duty to uphold because their client is not only the agency
they represent but also the public at large.”).
17. Recommendation 69-1, supra note 15; see also Jonathan R. Siegel, ACUS and Suits Against
Government, 83 Geo. Wash. L. Rev. 1642, 1653 (2015).
18. Letter from Antonin Scalia, Assistant Att’y Gen., to Sen. Edward M. Kennedy (May 10,
1976), as printed in S. Rep. No. 94-996, at 24, 26 (1976), as reprinted in 1976 U.S.C.C.A.N. 6121,
6144.
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not require that judicial review of administrative action always be available.
It requires only that the availability of judicial review should turn on factors
that serve rational policies.
The comprehensive review of specific judicial review statutes contained
in this Sourcebook has revealed some situations in which the availability of
judicial review does not comply with the principle that its availability should
turn on factors that serve rational policies. This Sourcebook identifies these
situations and recommends appropriate improvements in Part VI.

8

Goals of the Judicial Review Sourcebook Project

III
Methodology

T

o create this Sourcebook, ACUS followed a multi-stage methodology
described in this section. The stages of the project are referred to below
as Identification, Coding, Analysis, and Review.

A. Identification of Judicial Review Provisions
The first step was to identify provisions in the United States Code relating
to judicial review of agency action. Each title of the Code was assigned to an
ACUS attorney for review. Each attorney then identified provisions relating
to judicial review of agency action within his or her assigned titles as follows:
1. First, the attorney used Lexis Advance to conduct the following search
within each assigned title:
text (“judicial” or “review” or “court” or “appeal” or “civil” or “decision”) or
rule (“judicial” or “review” or “court” or “appeal” or “civil” or “decision”)
2. Then, for each provision identified using the above search, the attorney entered into a spreadsheet19 the provision’s citation, a description of the
provision, the popular name of the program or statutory regime of which the
provision was a part, the agency involved, and the text of the relevant provision.
3. The attorney then reviewed the names of the parts, chapters, subchapters, and sections within the attorney’s assigned titles and reviewed any

19. Statutory Analysis Spreadsheet, supra note 13.
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provisions that, based on their titles, were potentially related to judicial review
of agency action. The attorney added to the spreadsheet any provisions discovered through this search method that were not already included by virtue
of the Lexis search.
Following these steps, a second attorney reviewed the spreadsheet created
by the first attorney to determine whether the identified provisions were related
to judicial review of agency action or were really about something else. The
latter possibility arose particularly with regard to provisions identified by the
Lexis search method, as that method flagged provisions that contained any
of the specified keywords, even though some such provisions did not relate to
judicial review of agency action.
The second attorney categorized each provision as either “includable” or
“excludable” (i.e., either related to judicial review or really about something
else) and also placed each provision into one of the following categories:
Includable Categories
Provisions Specifying Judicial Review
Provisions Specifying Agency Can “Sue and Be Sued”
Provisions Related to Jurisdiction and Venue
Provisions Compelling Agency Action (i.e., Review of Agency Failure
to Act)
Provisions Specifying Final Action for Judicial Review Purposes
Provisions Prohibiting Judicial Review
Provisions Preventing Disclosure in Connection with Judicial Review
Excludable Categories
Provisions Providing for Administrative Appeal or Review, not Judicial
Review
Provisions Relating to General Agency Powers or Structure
Provisions Relating Solely to Agency Enforcement Actions
After ACUS attorneys had carried out the above-stated process with
regard to all titles of the United States Code (other than Title 28, which was
treated specially), the provisions identified were compiled into a single Statutory Analysis Spreadsheet.

10

Methodology

B. Coding of Judicial Review Provisions
ACUS staff, in consultation with a group of Project Advisors, then created a
coding schema to code the provisions in the Statutory Analysis Spreadsheet
for various characteristics. The characteristics included such things as whether
each provision provided where judicial review should be sought (and if so, in
which venue), when judicial review should be sought (and if so, during what
time), who could seek judicial review, whether bond was required, whether the
standard of review was specified, and so on. The coding schema was revised by
the Project Consultant. ACUS staff then coded all provisions in the Statutory
Analysis Spreadsheet according to the coding schema.

C. Analysis of Judicial Review Provisions
The Project Consultant reviewed the Statutory Analysis Spreadsheet, read
all the judicial review provisions in the spreadsheet, reviewed their codings,
and drafted this Sourcebook, which reports the Project Consultant’s findings
based on the above research.

D. Review
ACUS staff reviewed the initial draft of the Sourcebook and commented on it.
The draft was also circulated to the Project Advisors. The Project Consultant
revised the Sourcebook in response to comments received from ACUS staff
and from the Project Advisors. The Project Consultant also discussed the project with the members of the ACUS Committee on Judicial Review and revised
the Sourcebook in response to their comments. The result is this Sourcebook.

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IV
General Judicial Review Statutes

S

tatutes governing judicial review may be general or specific. As noted
earlier, a specific judicial review statute provides for review only of actions
by a specific agency or under a specific statute. A general judicial review
statute provides for judicial review of actions by multiple agencies under
multiple statutes.
There are two notable general judicial review statutes. The most prominent, of course, is the APA. The judicial review provisions of the APA,
5 U.S.C. §§ 701–706, apply to nearly all federal executive agencies. Also
significant, though of less wide-ranging application, is the Hobbs Act, 28
U.S.C. §§ 2342–2351, which governs judicial review of certain orders of
several specified agencies.
The primary purpose of this Sourcebook is to explore the numerous
specific judicial provisions found throughout the United States Code. Nonetheless, a basic understanding of the APA and the Hobbs Act will be helpful
in exploring the specific judicial review provisions. Accordingly, these general
judicial review statutes are discussed below. This discussion is not intended
as a comprehensive treatment of these statutes; such treatment may be found
in standard administrative law texts and treatises.20 The purpose here is to
provide background for the distinctive contribution of this Sourcebook, which
is its detailed discussion of specific judicial review statutes.

20. See, e.g., Guide, supra note 1; see also Richard J. Pierce, Jr., Sidney A. Shapiro & Paul
R. Verkuil, Administrative Law and Process (6th ed. 2014).
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A. The Administrative Procedure Act
The APA governs not just judicial review, but administrative law generally.
Chapter 7 of the APA, 5 U.S.C. §§ 701–706, governs judicial review of agency
action. Litigants and courts rely on its general judicial review provisions thousands of times every year.21
1. The Relationship Between the APA and Specific Judicial Review
Statutes
The relationship between specific judicial review provisions and the general
judicial review provisions of the APA is complex. For the most part, the judicial review provisions of the APA are default provisions. They apply when no
specific statute applies in a given case. When a specific statute does apply, its
rule typically displaces whatever rule would apply under the APA.
The susceptibility of the APA’s provisions to displacement by provisions
of more specific judicial review statutes follows in some cases from the text of
the APA’s provisions. For example, § 704 provides a rule governing finality of
agency action but states that this rule applies “[e]xcept as otherwise expressly
provided by statute.” Similarly, § 703 provides that the form of proceeding for
judicial review shall be “the special statutory review proceeding relevant to the
subject matter in a court specified by statute,” and then provides an additional
rule applicable only “in the absence or inadequacy” of such a specific statute.
Thus, the text of both of these provisions shows that these provisions yield to
those of other statutes that govern judicial review more specifically.
Even where the APA’s provisions do not expressly provide that they apply
only when no more specific statute governs, this result would follow from the
usual principle of statutory interpretation that the specific controls the general.22 The APA’s provisions are all general provisions that apply to the whole
range of federal agencies, and they would normally yield to more specific stat-

21. Searches in the Westlaw database of federal court decisions reveal that 5 U.S.C. § 706 alone
has been cited in judicial decisions over 20,000 times. Of course, not every invocation of these
statutes results in their being cited in a searchable court decision, so the true number of times
in which the provisions are invoked is probably much larger.
22. E.g., RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012). But see
id. at 646–47 (noting that this “canon is not an absolute rule”).
14

General Judicial Review Statutes

utes directed at specific agencies. Thus, for example, if Congress, in a specific
judicial review statute, were to provide that a particular agency’s actions are
to be subject to a more (or less) stringent standard of review than the standard
provided in 5 U.S.C. § 706, then the review provisions of the specific judicial
review statute would govern, notwithstanding that § 706, on its face, governs
judicial review of any agency action.23
However, the relationship between the APA’s provisions and those of
specific judicial review statutes is complicated by 5 U.S.C. § 559, which provides that a “[s]ubsequent statute may not be held to supersede or modify this
subchapter, [or] chapter 7 . . . except to the extent that it does so expressly.”
Section 559 does not eliminate Congress’s ability to provide specific judicial
review statutes that depart from the APA,24 but it may require Congress to
make such statutes clearer than they would otherwise have to be. Certainly,
Congress, in a specific judicial review statute, may provide for a different
rule than the corresponding APA rule that would otherwise apply, but in
light of § 559, if a specific judicial review statute, passed after the APA, does
not clearly provide such a different rule, a court may conclude that the APA
provision still applies. Thus, for example, in a case in which a specific judicial
review provision provided that an agency’s rulemaking proceedings would be
subject to review for “substantial evidence” instead of only the “arbitrary or
capricious” review that would normally apply under 5 U.S.C. § 706(2)(A), the
D.C. Circuit, citing § 559 as one factor influencing its interpretation, held that
the two standards were the same and that the specific judicial review statute
did nothing to change the standard that would have applied in its absence.25

23. See, e.g., Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1145 (10th Cir. 2010) (noting that the
APA provides the “default” standard of review when “the legislation at hand doesn’t supply a
standard of review”).
24. This is plain not only from the text of § 559, which does not purport to prohibit change
by future Congress, but also from the general principle that “one legislature may not bind the
legislative authority of its successors.” United States v. Winstar Corp., 518 U.S. 839, 872 (1996).
25. Association of Data Processing Serv. Orgs. v. Bd. of Governors of the Fed. Rsrv. Sys., 745
F.2d 677, 686 (D.C. Cir. 1984) (Scalia, J.); cf. Carlson v. Postal Regul. Comm’n, 938 F.3d 337, 348
(D.C. Cir. 2019). Although the Supreme Court did not have occasion to apply 5.U.S.C. § 559 to
a post-APA statute, it similarly emphasized that under § 559 “[e]xistence of the additional
requirement must be clear.” Dickinson v. Zurko, 527 U.S. 150, 155 (1999) (considering whether
pre-APA judicial decisions might establish a rule, different from a rule in the APA, that
would be preserved under § 559’s provision that “the APA does ‘not limit or repeal additional
requirements . . . recognized by law.’” Id. at 154.).
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The court stated that “the import of the § 559 instruction is that Congress’s
intent to make a substantive change [must] be clear.”26
Accordingly, the true rule is that: (a) the APA’s judicial review provisions are
default provisions that apply when no specific judicial review statute governs the
case at hand; (b) Congress may enact a specific judicial review statute that deviates from the APA’s otherwise applicable rules; but (c) in light of 5 U.S.C. § 559,
a court may conclude that a specific judicial review provision does not override
the more general provisions of the APA if it does not do so clearly.
2. The APA’s Provisions
The APA governs numerous aspects of judicial review of agency action. Each
of the APA’s six sections devoted to judicial review is described briefly below.
a) Section 701: Limitations on Review
The APA establishes that parties aggrieved by agency action are generally entitled to judicial review.27 Section 701, however, states two important exceptions
to this basic principle. It provides that the entire judicial review chapter of the
APA does not apply if “statutes preclude judicial review” or if “agency action
is committed to agency discretion by law.”
i. “Statutes preclude judicial review”
The exception for cases when “statutes preclude judicial review” refers to cases
in which a specific judicial review statute precludes judicial review of the kind
of agency action involved. Accordingly, in determining whether this exception
applies, it is necessary to consider the specific judicial review statutes applicable
to the agency at issue. The question whether such a statute precludes judicial
review is one of statutory interpretation. In answering the question, courts are
guided, in part, by general principles of statutory interpretation and, in part,
by presumptions particular to the topic of judicial review.

26. Association of Data Processing Serv. Orgs., 745 F.2d at 686.
27. See 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof.”).
16

General Judicial Review Statutes

The first step is the same as it would be in resolving any question of statutory interpretation, namely, consideration of the statutory text. Sometimes,
careful consideration of statutory text will reveal that a statute’s preclusive
scope is narrower than might appear at first glance.28 Courts also apply two
important, special presumptions. First, courts presume that judicial review
of agency action is available. Courts prefer to interpret ambiguous statutes so
as to permit judicial review and will conclude that a statute precludes review
only when there is “clear and convincing” evidence of congressional intent to
preclude review.29
Second, courts are particularly reluctant to find that a statute precludes
review of constitutional challenges to agency action. Such an interpretation,
courts typically note, would itself raise potential constitutional problems.30
Therefore, in accordance with the general “principle of avoidance,” pursuant
to which an ambiguous statute should, if possible, be interpreted in a way that
avoids raising serious constitutional questions, courts prefer, when possible,
to interpret a potentially preclusive statute in a way that does not bar assertion
of constitutional challenges to agency action.31
Thus, courts prefer to avoid interpreting statutes so as to preclude judicial
review of agency action. There is, however, an important distinction between
cases in which a statute potentially bars all review of an agency action and
cases in which a statute provides for review of an agency action, but limits or
channels that review. Although congressional preclusion of review is disfavored, congressional channeling of review is accepted. Thus, where Congress
allows judicial review of an agency action, but provides that such review must
be obtained in a specified way, a party that fails to seek review in the specified
way may lose the right to seek review any other way, even when this leads
to a harsh result such as denying the party the ability to raise a defense to a
criminal charge.32 Similarly, where Congress expressly provides for review of

28. E.g., Johnson v. Robison, 415 U.S. 361, 367 (1974) (holding that a statute precluding review
of “the decisions of the Administrator [of Veterans Affairs] on any question of law or fact
under any law administered by the Veterans’ Administration providing benefits for veterans”
did not bar a constitutional challenge to a veterans’ benefits statute itself).
29. Id. at 373–74; Abbott Lab’ys v. Gardner, 387 U.S. 136, 141 (1967).
30. E.g., Johnson, 415 U.S. at 366.
31. Id.; cf. Webster v. Doe, 486 U.S. 592, 603 (1988).
32. E.g., Yakus v. United States, 321 U.S. 414 (1944).
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17

agency action by specified parties, an inference may arise that review by other
parties is precluded.33
ii. Agency Action is Committed to Agency Discretion by Law
Section 701 also provides that judicial review of agency action is precluded
when “agency action is committed to agency discretion by law.”34 This exception, the Supreme Court has held, applies “in those rare instances where
‘statutes are drawn in such broad terms that in a given case there is no law
to apply.’”35 This exception therefore comes into play when a statute gives an
agency complete discretion in choosing an action, such that “a court would
have no meaningful standard against which to judge the agency’s exercise of
discretion.”36
Although the “no law to apply” standard is the one officially stated in the
Supreme Court’s cases interpreting § 701(a)(2), the cases also hint that there
is something more to the test. As Justice Scalia observed, virtually any agency
action is subject to some legal constraint, even if that constraint is not found
in an agency-specific statute.37 So why should one infer, from the lack of any
specific direction in any agency-specific statute, that Congress desired the
agency’s action to be wholly free of judicial review? The cases suggest that

33. E.g., Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984).
34. 5 U.S.C. § 701(a)(2).
35. Webster, 486 U.S. at 599 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 410 (1971)).
36. Id. at 600 (quoting Heckler v. Chaney, 470 U.S. 821 (1985)).
37. Webster, 486 U.S. at 608 (Scalia, J., dissenting).
18

General Judicial Review Statutes

courts resolve this paradox by considering the policy implications of allowing
judicial review in the matter at hand38 and tradition.39
b) Section 702: The Right of Review
Section 702 of the APA establishes the basic principle pursuant to which most
agency action is subject to judicial review. The first sentence of the section
states:
A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof.
At least two important principles are embedded in this sentence. First, this
sentence establishes that agency actions are generally subject to judicial review.
The Supreme Court has stated that § 702 “embodies the basic presumption of
judicial review,”40 and indeed, that the APA’s “‘generous review provisions’
must be given a ‘hospitable’ interpretation.”41 Section 702 evidently reflects the
belief that in most circumstances our government will work best if actions of
executive agencies, which are subject to direction by politically accountable
officials, are checked by the neutral, apolitical courts.

38. See id. at 601 (considering the “overriding need for ensuring integrity in the [Central
Intelligence] Agency”).
39. See, e.g., Heckler v. Chaney, 470 U.S. 821 (1985) (holding that an agency’s decision not to
initiate a particular enforcement action is presumptively not subject to judicial review, in part
based on an analogy to traditional prosecutorial discretion). Another paradox: how can the
lack of a “meaningful standard against which to judge the agency’s exercise of discretion”
signal that an agency is to have plenary authority to act and not even be subject to judicial
review, when the same lack is supposed to indicate that the delegation of such broad authority
to the agency violates of the nondelegation doctrine? Webster, 486 U.S. at 600 (quoting Heckler, 470 U.S. 821); see, e.g., Yakus v. United States, 321 U.S. 414, 426 (1944). The resolution may
lie in the Court’s observation that there is an inverse relationship between the breadth of the
power delegated and the degree of agency discretion with regard to the exercise of that power
that can be tolerated. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001). Delegating
authority without meaningfully constraining the exercise of that authority may be tolerable
when the authority delegated is narrow, and in such cases indicates that the authority is to
be exercised without judicial review, but the same lack of constraint would be intolerable in
connection with a broader authority.
40. Abbott Lab’ys v. Gardner, 387 U.S. 136, 140 (1967).
41. Id. at 141 (quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51 (1955)).
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19

Second, the sentence limits who is entitled to seek judicial review. A party
seeking judicial review must be “suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”42 The Supreme Court has interpreted this phrase
to impose the “zone of interests” standing requirement.43 The party seeking
review must be “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”44 This requirement
is in addition to the constitutional requirement that the plaintiff have suffered
injury in fact from the challenged agency action.45
The “zone of interests” test defies easy characterization, but in essence it
requires that a plaintiff seeking judicial review of agency action not only be
injured, but also be seeking to advance interests that are properly aligned with
the purposes of the statute allegedly violated. The Supreme Court has indicated that in applying the test, a court should discern the interests arguably to
be protected by the statutory provision at issue and then inquire whether the
plaintiff’s interests are among them.46 While it is not required that Congress
have intended to benefit parties such as the plaintiff,47 the plaintiff’s interests
must not be so remote from those arguably to be protected by the statutory
provision at issue that the plaintiff is a “merely incidental” beneficiary of the
statute.48 Thus, for example, a plaintiff claiming that an agency is being unlawfully lax in its enforcement of environmental protection laws would be within
the zone of interests if the plaintiff were allegedly suffering environmental
injury as a result,49 but a plaintiff that manufactured products that might be
used to satisfy the environmental protection laws and that would likely sell

42. 5 U.S.C. § 702.
43. See, e.g., NCUA v. First Nat’l Bank & Trust Co., 522 U.S. 479 (1998); Clarke v. Sec. Indus.
Ass’n, 479 U.S. 388 (1987); Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150
(1970).
44. NCUA, 522 U.S. at 488 (quoting Association of Data Processing Serv. Orgs., 397 U.S. at 153);
see also Clarke, 479 U.S. at 395–96.
45. Clarke, 479 U.S. at 400 n.16; Association of Data Processing Serv. Orgs., 397 U.S. at 151–54.
46. NCUA, 522 U.S. at 492.
47. Id.
48. Id. at 494 n.7.
49. E.g., Klamath-Siskiyou Wildlands Ctr. v. NOAA, 99 F. Supp. 3d 1033, 1045 (N.D. Cal.
2015).
20

General Judicial Review Statutes

more products if the agency enforced the laws more stringently would be
outside the zone of interests.50
As originally enacted, § 702 consisted only of what is now its first sentence.
The remainder of § 702, added in 1976, waives federal sovereign immunity
from actions for judicial review that seek redress other than money damages.51 Prior to the 1976 amendment, federal sovereign immunity frequently
prevented parties seeking judicial review of agency action from suing the
United States or an agency thereof and required them instead to resort to the
mechanism of an “officer suit,” whereby they would bring a suit ostensibly
against a federal officer personally, but really against the United States. The
fictitious nature of this suit form created numerous problems and sometimes
thwarted judicial review. ACUS Recommendation 69-1 recommended waiving
sovereign immunity in suits seeking judicial review of agency action, and the
1976 amendment to § 702 implemented this Recommendation.52 The happy
result of implementing this ACUS Recommendation was that a host of technical problems which thwarted actions for judicial review for reasons unrelated
to their merits melted away.
c) Section 703: The Form of Review
After § 702 gives the right of review, § 703 tells parties how to seek review.
The first sentence provides that parties should use “the special statutory
review proceeding relevant to the subject matter in a court specified by
statute.” In other words, if the agency action in question is the subject of a
specific judicial review statute that provides a specific mechanism for seeking

50. Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918, 921–25 (D.C. Cir. 1989);
Nat. Res. Def. Council v. EPA, 755 F.3d 1010, 1018 (D.C. Cir. 2014); cf. Twin Rivers Paper Co. v.
SEC, 934 F.3d 607 (D.C. Cir. 2019) (holding that a paper manufacturer did not have “zone of
interest” standing to challenge an SEC rule permitting investment companies to post required
reports online and send paper copies only to investors requesting them).
51. Bowen v. Massachusetts, 487 U.S. 879, 891–92 (1988) (“[T]he 1976 amendment to § 702
was intended to broaden the avenues for judicial review of agency action by eliminating the
defense of sovereign immunity in cases covered by the amendment.”).
52. Recommendation 69-1, supra note 15. For more on the story of the 1976 amendment to § 702
and ACUS’s role in it, see Siegel, supra note 17. For the original article supporting ACUS Recommendation 69-1, see Roger C. Cramton, Nonstatutory Review of Federal Administrative Action:
The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties
Defendant, 68 Mich. L. Rev. 387 (1970).
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review, then a party seeking review must use that mechanism. However, if
there is no such special mechanism provided (“in the absence or inadequacy
thereof ”), then § 703 authorizes parties to seek review by “any applicable
form of legal action.” The second sentence of § 703 further clarifies that in
that circumstance, “the action for judicial review may be brought against
the United States, the agency by its official title, or the appropriate officer.”
Accordingly, in cases when no specific judicial review statute tells parties
how to seek review, they would do so by bringing an ordinary civil action
in federal district court, typically naming the agency that took the action of
which review is sought as the defendant.
The final sentence of § 703 provides that “[e]xcept to the extent that prior,
adequate, and exclusive opportunity for judicial review is provided by law,
agency action is subject to judicial review in civil or criminal proceedings
for judicial enforcement.” Pursuant to this sentence, a party wishing to challenge an agency action may normally raise that challenge as a defense to an
enforcement action by the government. Thus, for example, if an agency adopts
a regulation to which the party is subject, the party, instead of affirmatively
suing to challenge the regulation, may violate the regulation and then, when
the government brings an enforcement action against the party, defend by
alleging that the regulation is procedurally or substantively invalid.53
However, as the last sentence of § 703 indicates, Congress may provide
by statute that a party wishing to challenge an agency action must do so in a
specified manner prior to facing an enforcement action. If Congress provides
a “prior [and] adequate” mechanism for seeking review, Congress may make
that mechanism “exclusive,” i.e., Congress may require that parties desiring
review use the mechanism provided and prohibit such parties from saving
their challenges to the agency action and raising them as a defense in a subsequent enforcement proceeding.54

53. E.g., United States v. N.S. Food Prods. Corp., 568 F.2d 240 (2d Cir. 1977).
54. E.g., Yakus v. United States, 321 U.S. 414 (1944).
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d) Section 704: Which Actions are Reviewable
Having established the right of review and the mechanism for review, the
APA next describes which agency actions are reviewable. The first sentence
of § 704 allows review of two categories of agency actions: those that are
“made reviewable by statute” and “final agency actions for which there is
no other adequate remedy in a court.” Like the first sentence of § 703, these
provisions indicate that the general review provisions of the APA operate
against the backdrop of the many specific judicial review provisions found
elsewhere in the United States Code. If a specific review provision specifies
which agency actions are reviewable, it is controlling. The second category,
however, provides the general, default rule: agency action is subject to judicial
review if it is final. The limitation in the second category that there must be
“no other adequate remedy in a court” again indicates that this general rule
applies where Congress has not provided a specific judicial review statute
that governs the kind of agency action in question.55
An agency action is “final” when it “mark[s] the consummation of the
agency’s decisionmaking process” and is “one by which rights or obligations
have been determined, or from which legal consequences will flow.”56 Thus,
for example, an agency order that charges a private party with misconduct and
contemplates a further agency proceeding at which the agency will determine
whether to sustain the charge is not final, as such an order constitutes the
beginning, not the end, of the agency’s decision-making process.57 However,
an agency rule may be final even though the rule has not yet been enforced
against any regulated party.58
The second sentence of § 704 allows courts to review an agency’s “preliminary, procedural, or intermediate” action when reviewing the agency’s

55. See Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (quoting the Attorney General’s
Manual on the Administrative Procedure Act for the proposition that § 704 “does not provide
additional judicial remedies in situations where the Congress has provided special and adequate review procedures”).
56. U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016) (quoting Bennett v.
Spear, 520 U.S. 154, 177–78 (1997)).
57. E.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938).
58. E.g., Abbott Lab’ys v. Gardner, 387 U.S. 136 (1967).
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subsequent, final action.59 This practice is similar to the practice used in civil
litigation. A district court’s interlocutory orders are usually not appealable,
but a court of appeals may review them when it hears an appeal of the district
court’s subsequent, final judgment in the same case.60
The final, most complex sentence of § 704 establishes the relationship
between finality and the availability of further agency review of an initial
decision. It provides that if an agency’s action is “otherwise final,” the action is
normally still final even if the party seeking judicial review could have sought
reconsideration by the agency or could have appealed to a higher authority
within the agency. Thus, this provision permits a party to seek judicial review
of agency action without first seeking reconsideration by the agency and
without first taking an available appeal to a higher agency authority. But this
permission is subject to two exceptions: first, it applies only “[e]xcept as otherwise expressly required by statute.” Second, an agency may require a party to
take an internal agency appeal before seeking judicial review, but the agency
must do so by rule, and the rule must provide that, during the pendency of
the internal appeal, the agency action being appealed shall be inoperative.61
This complicated final sentence requires careful attention by any party
wishing to determine whether it may seek immediate judicial review of an
agency order or whether it must first apply for further action by the agency.
Such a party should consider:
• Is the agency’s order “otherwise final”? The first step is to consider
whether the agency’s action would be final if none of the further steps
mentioned in § 704 (application for a declaratory order, reconsideration,
or internal agency appeal) were available. This determination is to be
made using the criteria noted above, i.e., whether the order “mark[s] the
consummation of the agency’s decisionmaking process” and is “one by

59. See, e.g., Burns v. Dir., Off. of Workers’ Comp. Programs, 41 F.3d 1555 (D.C. Cir. 1994).
60. E.g., Water West, Inc. v. Entek Corp., 788 F.2d 627 (9th Cir. 1986) (reversing a district
court’s final judgment because the district court had wrongly denied a motion to dismiss for
improper venue); Modern Woodmen of Am. v. Watkins, 132 F.2d 352 (5th Cir. 1942) (reversing a judgment because of an erroneous evidentiary ruling made during trial).
61. 5 U.S.C. § 704; see Darby v. Cisneros, 509 U.S. 137, 143–44 (1993).
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which rights or obligations have been determined, or from which legal
consequences will flow.”62
• Does a specific review statute apply? The sentence applies only “except
as otherwise expressly required by statute,” so Congress may override
the provisions of § 704 and require that a party seek any specified degree
of further agency action before seeking judicial review. Congress may,
for example, require such a party to take an internal agency appeal even
though the initial agency order would remain operative during the appeal.
• What form of further agency review is involved? An agency rule may
never require a party to seek “any form of reconsideration,” that is, further review at the same level of agency authority, but an agency rule may
require a party to seek “appeal to superior agency authority” if it provides
that the agency action is meanwhile inoperative.63
e) Section 705: Preliminary Relief Pending Review
Section 705 authorizes a court to issue “all necessary and appropriate process”
that may be necessary to prevent irreparable injury pending review. The court
may postpone the effective date of agency action or otherwise “preserve status
or rights.” An agency may also postpone the effective date of its own action
pending judicial review when it finds that “justice so requires.”
A court’s order postponing the effective date of agency action pending
review is analogous to the issuance of a preliminary injunction in ordinary
civil litigation, and the test for whether the court should issue relief in the two
situations is either the same,64 or, at least, “closely similar.”65 The court considers the likelihood of success on the merits, the likelihood of irreparable harm
if preliminary relief is not issued, the likelihood that other parties will suffer
if preliminary relief is issued, and the public interest.66

62. U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016) (quoting Bennett v.
Spear, 520 U.S. 154, 177–78 (1997)).
63. 5 U.S.C. § 704 (emphasis added).
64. See, e.g., Corning Sav. & Loan Ass’n v. Fed. Home Loan Bank Bd., 562 F. Supp. 279 (E.D.
Ark. 1983).
65. Washington v. U.S. Dep’t of Homeland Sec., 408 F. Supp. 3d 1191, 1211 (E.D. Wash. 2019).
66. Id.
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f) Section 706: The Scope of Review
In any proceeding in which a reviewing authority reviews the decision of an
initial decisionmaker, a critical question is the standard of review. Section
706 of the APA addresses this question and is therefore of great importance.
However, the terms of § 706 must be considered in light of the voluminous
body of judicial precedent interpreting it. When read in light of the judicial
glosses that have been put on it, § 706 provides that while judicial review of
agency action is generally available, that review is limited. It is limited procedurally, and it is limited substantively. Review is limited procedurally in
that the reviewing court generally does not create its own record; rather, the
reviewing court reviews the record already created by the agency. Review is
limited substantively in that the reviewing court generally shows deference to
the agency, on questions of both fact and law.
The first sentence of § 706 apparently confers broad powers on a reviewing
court. It states that “[t]o the extent necessary to decision and when presented,
the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability
of the terms of an agency action.” This sentence appears to suggest that any
question of law arising in a proceeding for judicial review is a question for the
court, and one might expect, for example, that a reviewing court would determine the meaning of any applicable statute de novo. Indeed, because the first
sentence of § 706 directs the court to “determine the meaning or applicability
of the terms of an agency action,” one might expect the same principle to apply
to the interpretation of an agency regulation.
In fact, however, the Supreme Court has established “deference” doctrines
under which a reviewing court may be required to defer to an agency’s interpretation of a statute that the agency administers or of one of agency’s own
regulations. Most notably, the Court has held a court reviewing an agency’s
interpretation of a statute that the agency administers must uphold any reasonable interpretation of an ambiguous provision within the statute (the principle

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of Chevron deference).67 The Court has also indicated that under appropriate
circumstances courts must defer to an agency’s reasonable construction of
the agency’s own, ambiguous regulation (Auer or Seminole Rock deference).68
These deference doctrines substantially limit the broad power apparently
conferred by the text of § 706.69
Recently, important legal actors, including at least two Supreme Court
Justices, have attacked Chevron and Auer deference.70 These deference doctrines have also been defended,71 and Auer was recently reaffirmed,72 but it
is still possible that one or both doctrines will be abandoned or substantially

67. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984). This rule is usually
stated as having two “steps”: first, the reviewing court determines whether the statute clearly
addresses the precise question at issue; if it does, then both the agency and the court are bound
by the clear terms of the statute. Id. at 842–43. Only if the statute is ambiguous does the court
proceed to the second step, in which it upholds the agency’s interpretation as long as it is
reasonable. Id. at 843.
68. Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410
(1945). In Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the Supreme Court reaffirmed this form of
deference but listed several circumstances in which it would apply.
69. For assertions that Chevron deference is inconsistent with the language of § 706, see, for
example, Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 109–10 (2015) (Scalia, J., dissenting). See
also Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152–54 (10th Cir. 2016) (Gorsuch, J., concurring); Kenneth Culp Davis, Administrative Law of the Eighties, Administrative Law
Treatise 507–26 (Supp. 1989); Jack M. Beermann, End the Failed Chevron Experiment Now:
How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779,
788–89 (2010); Ronald A. Cass, Vive la Deference?: Rethinking the Balance Between Administrative and Judicial Discretion, 83 Geo. Wash. L. Rev. 1294, 1313 (2015); Duffy, supra note 7,
at 194–95. For attempted reconciliations of Chevron deference with § 706, see, for example,
Kisor, 139 S. Ct. at 2419; Ronald M. Levin, The APA and the Assault on Deference, 106 Minn.
L. Rev. 125 (2021); Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613, 1641–57 (2019). On
the question of whether Chevron actually makes a difference, see Kent Barnett & Christopher
J. Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1, 6 (2017) (“[A]gencies won significantly more in the circuit courts when Chevron deference applied, at least when the court
expressly considered whether to apply Chevron.”); Thomas W. Merrill, Judicial Deference to
Executive Precedent, 101 Yale L.J. 969, 984 (1992) (“[T]here is no discernible relationship
between the application of the Chevron framework [by the Supreme Court] and greater acceptance of the executive view.”).
70. See Kisor, 139 S. Ct. at 2425 (Gorsuch, J., concurring in the judgment); Michigan v. EPA, 576
U.S. 743, 760–64 (2015) (Thomas, J., concurring); Perez, 575 U.S. at 119, 123–24, 131 (Thomas, J.,
concurring in the judgment); Gutierrez-Brizuela, 834 F.3d at 1153 (Gorsuch, J., concurring); see also
Separation of Powers Restoration Act of 2016, H.R. 4768, 114th Cong. (2016) (proposing to repeal
Chevron legislatively); Separation of Powers Restoration Act, S. 909, 116th Cong. (2019) (same bill
in a more recent Congress); Philip Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187 (2016).
71. Jonathan R. Siegel, The Constitutional Case for Chevron Deference, 71 Vand. L. Rev. 937
(2018); Daniel E. Walters, The Self-Delegation False Alarm: Analyzing Auer Deference’s Effects
on Agency Rules, 119 Colum. L. Rev. 85 (2019).
72. Kisor, 139 S. Ct. 2400.
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modified in the near future—perhaps before this Sourcebook is published.
Still, for now, these doctrines remain the law and limit the effect of the first
sentence of § 706.
The remainder of § 706 further guides a reviewing court in judging an
agency’s action. The next sentence states that the reviewing court shall “compel
agency action unlawfully withheld or unreasonably delayed.” This provision
makes clear that a court may review an agency’s failure to act and may order
the agency to take legally required action.73
Section 706 further provides that a reviewing court shall “hold unlawful
and set aside agency action, findings, and conclusions found to be” improper
in any of several different ways, the most important of which is the first: being
“arbitrary, capricious, or otherwise not in accordance with law.”74 Some of the
other categories are mostly, or perhaps entirely, redundant of this provision.
The section goes on to state that a court shall set aside agency action found
to be “contrary to constitutional right, power, privilege, or immunity”; “in
excess of statutory jurisdiction, authority, or limitations, or short of statutory
right”; or “without observance of procedure required by law.” In all such cases,
however, the agency’s action would almost certainly be “not in accordance
with law.” Section 706 also provides that the reviewing court shall set aside
agency action that is “unsupported by substantial evidence in a case subject
to sections 556 and 557 of this title or otherwise reviewed on the record of an
agency hearing provided by statute,” or “unwarranted by the facts to the extent
that the facts are subject to trial de novo by the reviewing court.”
Again, knowledge of the judicial glosses on these provisions is vital. The
power of a court to set aside agency action that is “arbitrary [or] capricious”
or, in certain cases, “unsupported by substantial evidence,” permits a court to
review an agency’s factual findings and policy judgments, but, again, deferentially.75 A court must not set aside an agency finding that is supported by “such

73. E.g., Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004); Fanin v. U.S. Dep’t of Veterans Affs., 572 F.3d 868, 875 (11th Cir. 2009).
74. 5 U.S.C. § 706(2), (2)(A).
75. See, e.g., Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983) (“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a
court is not to substitute its judgment for that of the agency.”); FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 513 (2009) (reiterating that “a court is not to substitute its judgment for that
of the agency” (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S.
281, 286 (1974))).
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relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”76 Thus, if the court believes that a reasonable person might have
found the facts found by the agency, it must not disturb those facts. Judicial
review of the agency’s factual findings is therefore deferential. A similar principle applies to judicial review of an agency’s policy judgments.77
Finally, § 706 provides that “[i]n making the foregoing determinations,
the court shall review the whole record or those parts of it cited by a party,
and due account shall be taken of the rule of prejudicial error.” As this provision implicitly recognizes, a reviewing court typically does not make its own
record, but rather reviews the record already prepared by the agency. If the
agency record is defective or inadequate for judicial review—if, for example, the
agency improperly refused to receive proffered evidence, or if the record does
not sufficiently show what action the agency took or what reason the agency
had for its action—the usual remedy is not for the court to receive evidence
on its own, but for it to remand the case to the agency for the construction of a
better record, which the court can review in a subsequent judicial proceeding.78

B. The Hobbs Act
The APA, covered in the previous section, is a truly general judicial review
statute, which applies to virtually every agency in the executive branch. The
other most notable general judicial review statute, the Hobbs Act,79 is more

76. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consol. Edison Co.
of N.Y. v. NLRB, 305 U.S. 197, 217 (1938)). Strictly speaking, the definition quoted in the text
above applies only to cases subject to the “substantial evidence” standard of review, but in
cases when that standard does not apply, the same rule with regard to findings of fact governs
the court’s power to set aside agency actions on the ground that they are “arbitrary [or] capricious.” See Association of Data Processing Serv. Orgs. v. Bd. of Governors of the Fed. Rsrv.
Sys., 745 F.2d 677 (D.C. Cir. 1984) (holding that “substantial evidence” review and “arbitrary
[or] capricious” review are equivalent with regard to review of factual findings).
77. See Motor Vehicle Mfrs. Ass’n of U.S., 463 U.S. at 43.
78. Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985).
79. 28 U.S.C. §§ 2341–2351. The Hobbs Act relevant to this Sourcebook should not be confused with a criminal statute, 18 U.S.C. § 1951, also known as the Hobbs Act. The criminal
statute is actually the more frequently cited Hobbs Act. A search of Westlaw’s database of all
federal cases for “Hobbs Act” in the same paragraph as a citation to “18 U.S.C.” produces over
7,500 cases; a search in the same database for “Hobbs Act” in the same paragraph as a citation
to “28 U.S.C.” produces only about 1,800 cases.
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limited in its application. It applies only to certain orders of certain agencies,
namely, those specified in 28 U.S.C. §§ 2341–2342. The Hobbs Act is, however, well worth examining in some detail, as many features of the Hobbs Act
recur in numerous other specific judicial review statutes covered later in this
Sourcebook.
The Hobbs Act grew out of a recommendation from a committee of
senior federal judges convened in 1942 by Chief Justice Harlan Fiske Stone.80
Chief Justice Stone asked the committee to recommend improvements to the
then-existing scheme of reviewing agency orders, which was provided by the
Urgent Deficiencies Act (UDA) of 1913.81 At the time the UDA was originally
passed, the only independent regulatory agency of real importance was the
Interstate Commerce Commission, and the UDA called for its orders to be
reviewed by three-judge district courts.82 This procedure had several disadvantages: three-judge district courts were cumbersome to convene and awkward in
operation; the UDA called for the three-judge district court to gather evidence
by holding a trial, which was often duplicative of evidentiary proceedings
already held at the agency level; the provisions of the UDA were uncertain, in
part because it had repealed prior procedures only partially, leaving others in
operation by inference; and appeal as of right lay from the decisions of threejudge district courts to the Supreme Court, which resulted in the Supreme
Court’s hearing many cases of only minor importance.83
To cure these problems, the committee convened by Chief Justice Stone
recommended that review of agency orders be conducted by courts of appeals
rather than by three-judge district courts.84 Moreover, the committee recognized that in the great majority of cases, the agency issuing the order under
review would have already held a hearing and would thereby already have
created a record.85 Judicial review, the committee recommended, should take
place on the basis of the existing agency record, not on the basis of a new record

80. Details of the history of the Hobbs Act are drawn from the useful student note, Jason N.
Sigalos, Note, The Other Hobbs Act: An Old Leviathan in the Modern Administrative State, 54
Ga. L. Rev. 1095 (2020).
81. Id. at 1102–04.
82. Id.
83. Id. at 1106–10.
84. Id. at 1104–07.
85. Id.
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created by the reviewing court.86 However, the committee also included provision for the reviewing court to create a record in some cases, namely, those
in which the agency issuing the order had not conducted a formal hearing.87
In such cases, the committee concluded, there would be no agency “record”
already in existence that a court could review.88
In other words, the committee recommended implementing a key principle of modern administrative law, namely, that a court reviewing agency action
should review the existing agency record rather than create a record of its own,
but it did not foresee the even more modern development of applying this
principle to agency proceedings that did not produce a formal record. Today,
a court conducting review of an agency proceeding that is not technically “on
the record” still conducts review on the basis of the agency “record,” which
consists of whatever materials the agency considered in making its decision.89
The committee did not, however, anticipate this point, and as a result, some
features of the Hobbs Act do not fit perfectly with modern understandings of
administrative law. The act raises some questions that remain unanswered
more than 60 years after its passage.90
Nonetheless, the Hobbs Act was an important advance over the previously
existing three-judge court procedure. It laid out a review process that is echoed
in many specific judicial review statutes. These procedures are detailed below.

86. Id. at 1106.
87. Id.
88. Id.
89. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); Gordon G.
Young, Judicial Review of Informal Agency Action on the Fiftieth Anniversary of the APA: The
Alleged Demise and Actual Status of Overton Park’s Requirement of Judicial Review “On the
Record”, 10 Admin. L.J. Am. U. 179, 208 (1996).
90. See, e.g., PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (2019)
(remanding without resolving the question of whether a party that does not challenge a rule
issued by an agency within the 60-day time period provided by the Hobbs Act may attack the
validity of the rule in subsequent litigation between private parties).
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1. Covered Agencies and Procedures
The first two sections of the Hobbs Act specify which agency actions are covered by the Act.91 The Act applies to certain, specified rules, regulations, and
orders of the Federal Communications Commission, the Federal Maritime
Commission, the Atomic Energy Commission, the Surface Transportation
Board, the Maritime Administration, the Secretary of Agriculture, the Secretary of Transportation, and the Secretary of Housing and Urban Development.
2. The Right of Review; How, When, and Where to Seek Review
Section 2344 of the Hobbs Act allows for review of any final order covered by
the act. It also, in conjunction with § 2343, provides for how, when, and where
to seek review. An aggrieved party seeks review by filing a petition for review.92
The action is filed against the United States.93 The petition must be filed within
60 days after entry of the order of which review is sought.94 The petition is to
be filed in the court of appeals “wherein venue lies.”95 Section 2343 permits
venue in the circuit where the petitioner resides or has its principal office; it
also permits venue in the U.S. Court of Appeals for the D.C. Circuit.96
Section 2344 also provides for the content of the petition. It states that the
petition must contain “a concise statement of—(1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the
grounds on which relief is sought; and (4) the relief prayed.” These requirements,
however, have been superseded by Rule 15 of the Federal Rules of Appellate
Procedure, which requires only that the petition for review name the parties
seeking review, name the agency as a respondent and specify the order or part
thereof to be reviewed.97 In recommending the adoption of Rule 15, the Judicial
Conference’s Advisory Committee on the Appellate Rules observed that the

91. 28 U.S.C. §§ 2341–2342.
92. Id. § 2344.
93. Id.
94. Id.
95. Id.
96. Id.
97. Fed. R. App. P. 15(a)(2).
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additional matters required by § 2344 to be included in a petition for review are
“rarely useful either to the litigants or to the court.”98 Because rules issued pursuant to the Rules Enabling Act supersede “[a]ll laws in conflict with such rules,”99
the simpler requirements of Rule 15 of the Federal Rules of Appellate Procedure
supersede the more elaborate requirements of 28 U.S.C. § 2344. The D.C. Circuit
has confirmed that a petition for review that satisfies the requirements of Rule
15 may not be dismissed on the ground that it fails to comply with § 2344.100
Service of the petition is the responsibility of the clerk of the court, who,
§ 2344 provides, shall serve a copy of the petition on the agency and on the
Attorney General.
3. Procedures for Review
The Hobbs Act goes on to provide procedures that the reviewing court shall
apply.
Prehearing Conference. The court may hold a prehearing conference or
direct one of its judges to do so.101
The Record. Section 2346 provides that the agency shall file the record on
review with the clerk of the court, as provided in 28 U.S.C. § 2112.102 In cases in
which the agency held a hearing before taking the action under review, § 2347(a)
provides that review shall be conducted on the basis of that record. In cases in
which the agency did not hold a hearing, however, the procedure is more complicated. Section 2347(b) provides that, in such cases, the court of appeals shall
determine whether a hearing was required by law. If so, the court is to remand
the case to the agency to hold a hearing.103 If a hearing was not required by law,
and no hearing is required to resolve any genuine issue of material fact, the court

98. Fed. R. App. P. 15 advisory committee’s note to 1967 adoption.
99. 28 U.S.C. § 2072(b).
100. Am. Paper Inst. v. Interstate Com. Comm’n, 607 F.2d 1011 (D.C. Cir. 1979).
101. 28 U.S.C. § 2345.
102. Section 2112 is not part of the Hobbs Act, but is, rather, a more general statute regarding
the record on judicial review of agency action. It is referenced in many specific judicial review
statutes. It provides that the rules issued pursuant to the Rules Enabling Act (e.g., the Federal
Rules of Appellate Procedure) may provide for the time and manner of filing the record and
the contents thereof. It authorizes those rules to allow the common practice whereby the
agency retains the actual record and files instead a certified list of the materials in the record.
103. 28 U.S.C. § 2347(b)(1).
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of appeals shall decide the case.104 But if a genuine issue of material fact requires
evidentiary development, the Hobbs Act instructs the court of appeals to transfer
the case to a district court for a hearing.105
As noted earlier, this last provision is in tension with modern practices in
administrative law. In cases in which a court needs a more developed record
upon which to conduct judicial review, modern practice calls upon the court
to remand the case to the agency for creation of such a record, rather than for
a court to receive evidence and develop the record itself.106 Nonetheless, under
the Hobbs Act, courts do in some cases invoke the procedure of transferring
the case to a district court for further development of the record,107 although
usually only after determining that the party seeking review has a colorable
claim upon which relief might be granted after such factual development.108
The Hobbs Act procedure for record development is anomalous within
modern administrative law. It seems intuitively likely that this procedure survives only out of inertia, the Hobbs Act having been enacted before the modern
practice of remanding cases to agencies for factual development became fully
established. On the other hand, it is conceivable that the Hobbs Act procedure
has special value in the proceedings to which it applies. Further study of this
specific procedure would be needed before making a recommendation, but
ACUS may wish to consider whether to recommend that the Hobbs Act procedure be conformed to the modern practice in this regard.
Parties and Their Representation. Section 2348 provides that the Attorney
General shall have “control of the interests of the Government” in Hobbs Act
proceedings, but it also allows “[t]he agency” to appear. Accordingly, in cases
involving agencies covered by the Hobbs Act, it is common to find the agency
appearing by agency counsel, although Department of Justice counsel will
usually also sign the agency’s brief.
Jurisdiction. The Act provides that upon the filing and service of a petition
for review, the court of appeals in which the petition is filed has jurisdiction

104. Id. § 2347(b)(2).
105. Id. § 2347(b)(3).
106. Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985).
107. E.g., Gallo-Alvarez v. Ashcroft, 266 F.3d 1123 (9th Cir. 2001).
108. E.g., Morgan v. Gonzales, 495 F.3d 1084 (9th Cir. 2007) (holding that no transfer to district court is needed when the petitioner lacks such a colorable claim).
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of the resulting proceeding.109 Once the record is filed, the court of appeals in
which it is filed has jurisdiction to vacate stay orders or interlocutory orders
entered by any other court and has exclusive jurisdiction to enter a judgment
determining the validity of the agency order.110
Stays. The filing of a petition for review does not automatically stay the
agency action of which review is sought, but a court of appeals has discretion
to order the agency action stayed pending review.111
Supreme Court Review. Orders granting or denying interlocutory injunctions and the final judgment of a court of appeals on a petition for review are
subject to Supreme Court review by writ of certiorari as usual.112

C. Other General Judicial Review Provisions
The sections above cover the most important general judicial review statutes,
but there are some others. Most notably, 28 U.S.C. § 2112 provides that rules
issued pursuant to the Rules Enabling Act,113 may provide for the time and
manner in which an agency shall file the record when review of its action is
sought in a court of appeals. This provision is implemented by Federal Rule of
Appellate Procedure 17, which provides that the agency shall, within 40 days of
being served with a petition for review, file with the circuit court clerk either
the original or a certified copy of the entire record or parts designated by the
parties, or a certified list of all materials constituting the record or the parts
designated by the parties. Section 2112 also addresses the “race to the courthouse” problem, which arises when multiple petitions for review of the same
agency action are filed in different courts of appeals. In accordance with ACUS
Recommendation 80-5, Eliminating or Simplifying the “Race to the Courthouse”

109. 28 U.S.C. §§ 2342, 2349.
110. Id. § 2349.
111. Id. § 2349(b).
112. Id. § 2350.
113. See id. § 2072.
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in Appeals from Agency Action,114 § 2112 provides for a lottery to determine
which court of appeals shall review the agency action in such a case.115
The Federal Rules of Appellate Procedure also provide some further general provisions regarding review of agency actions in courts of appeals. Notable
among these is Rule 15, which provides simple requirements for the contents
of a petition for review of agency action: such a petition must name each party
seeking review, name the agency as respondent, and specify the order or part
thereof to be reviewed. In addition, Rule 16 provides that the agency “record”
on review shall consist of the order of which review is sought, any findings
or report on which the order is based, and the pleadings, evidence, and other
parts of the proceedings before the agency. Rule 18 allows a party to seek a stay
of an agency’s action pending judicial review.

114. Recommendation 80-5, supra note 15.
115. For further discussion of the “race to the courthouse” issue and a recommendation
regarding a potential revision to this portion of § 2112, see infra Part V.D.3.
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General Judicial Review Statutes

V
Specific Judicial Review Statutes

I

n addition to the general judicial review statutes discussed above, the
United States Code is filled with specific judicial review statutes. These
specific statutes govern judicial review of actions taken by a particular federal agency and may govern only specific kinds of actions at a specific agency.
These provisions vary widely. Some say no more than that judicial review of a
specified agency action is available. Others provide considerable detail about
when, where, and how such review is to be had. Among other things, a specific judicial review statute may regulate who may seek judicial review, when
to seek review, where to seek review, the mechanism by which to seek review,
the arguments that can be raised on judicial review, the record on review, the
standard of review, and the relief available on review.
In preparing the research that underlies this Sourcebook, ACUS staff
identified and examined over 650 specific judicial review provisions in the
United States Code. The distinctive feature of this project is that it contains
observations, insights, and recommendations derived from this comprehensive
examination of all the provisions governing judicial review of agency action
in the United States Code. This part of the Sourcebook contains these observations, insights, and recommendations.
Each section of this part considers a different aspect of specific judicial
review statutes. Each section concludes with recommendations for improvement, if any. Some of these recommendations provide a suggested style or
drafting practice to be used as Congress passes specific judicial review statutes in the future. Other recommendations suggest the passage of statutory
amendments to alleviate problems with existing statutes. These latter recommendations, taken together, call for the passage of one statute, referred
to herein as “the general statute,” or as “the savings statute,” as many of its
recommended provisions would have the effect of saving suits seeking judicial
review of agency action from dismissal on technical grounds.
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A. Redundant Provisions
A striking feature of the hundreds of specific judicial review provisions found
throughout the United States Code is how many of them are redundant. They
do no more than state some rule that would apply anyway, by operation of
a general judicial review statute (the APA or the Hobbs Act), federal rule of
procedure, or common-law principle. If these redundant statutory provisions
were omitted from the specific judicial review provision, no case would come
out differently.
1. Representative Redundancies
A few examples give the flavor of these redundant provisions. Dozens of provisions for judicial review state that seeking judicial review of a specified agency
action shall not, by itself, cause the action to be stayed while review is pending.
These provisions typically state that the agency action will be stayed only if
the court in which review is sought specifically orders a stay. Such provisions
are strewn throughout the United States Code.116
However, there is no reason to imagine that in the absence of such a provision, the filing of an action for judicial review would automatically result in
a stay of the agency action under review. Section 705 of the APA authorizes
interim relief pending review, but it conspicuously states that a reviewing court
“may,” not “must,” postpone the effective date of an agency action pending
review.117 More than fifty years ago, the Supreme Court noted that the filing
of an action seeking judicial review of an allegedly unlawful regulation “does

116. It would be tedious to list all the provisions in the United States Code that take this form,
but for a sampling of such provisions, see, for example, 8 U.S.C. § 1252(b)(3)(B) (“Service
of the petition on the officer or employee does not stay the removal of an alien pending the
court’s decision on the petition, unless the court orders otherwise.”); 12 U.S.C. § 1786(j)
(3) (“The commencement of proceedings for judicial review under paragraph (2) of this
subsection shall not, unless specifically ordered by the court, operate as a stay of any order
issued by the Board.”); 15 U.S.C. § 80a-9(f)(4)(C) (“The commencement of proceedings under
subparagraph (B) of this paragraph shall not, unless specifically ordered by the court, operate
as a stay of the Commission’s order.”); 29 U.S.C. § 210(b) (“The commencement of proceedings under subsection (a) shall not, unless specifically ordered by the court, operate as a stay of
the Administrator’s order.”).
117. 5 U.S.C. § 705; see also Fed. R. App. P. 18 (providing for stays of agency action pending
review but requiring a motion for such a stay to state the reasons why such relief should be
granted).
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not by itself stay the effectiveness of the challenged regulation.”118 Thus, the
default rule, applicable when a specific review statute says nothing on the topic,
is that seeking judicial review of an agency action does not automatically stay
the agency action. Restating this rule adds nothing.
Innumerable other statutory provisions exhibit the same redundancy. For
example, many specific review provisions state that an agency’s factual findings, if supported by substantial evidence, shall be conclusive.119 Again, this is a
standard, general principle of administrative law, which would be true whether
it were stated or not.120 Similarly, innumerable specific review provisions state
that after a private party invokes judicial review in a court of appeals, the
agency shall file the administrative record with the court in which review is
sought.121 But Federal Rule of Appellate Procedure 17 says the same thing for
all cases seeking judicial review of agency action in a court of appeals, so there
is no need to say this in a particular judicial review statute providing for review
in such a court. Or again, many judicial review provisions specify that after

118. Abbott Lab’ys v. Gardner, 387 U.S. 136, 155 (1967).
119. Again, it would be tedious to list all the examples, but here is a sampling: 12 U.S.C. § 1848 (“The
findings of the Board as to the facts, if supported by substantial evidence, shall be conclusive.”);
15 U.S.C. § 80a-42(a) (“The findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.”); 19 U.S.C. § 1641(e)(3) (“The findings of the Secretary as to
the facts, if supported by substantial evidence, shall be conclusive.”); 42 U.S.C. § 1316(a)(4) (“The
findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive . . . .”). Even
the slight variation that occasionally relieves the tedium—for example, 15 U.S.C. § 77i(a) (“The
finding of the Commission as to the facts, if supported by evidence, shall be conclusive.”) (emphasis
added)—makes no difference, as the requirement that an administrative finding be supported
by evidence has long been judicially construed to mean that the finding must be supported
by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (citing
Washington, V. & M. Coach Co. v. NLRB, 301 U.S. 142, 146–47 (1937)). For an early compilation
of statutes using the term “substantial evidence,” with the observation that its use had become
“virtually standard drafting practice,” see E. Blythe Stason, “Substantial Evidence” in Administrative Law, 89 U. Pa. L. Rev. 1026, 1026–29 (1941).
120. Section 706 of the APA generally provides that a court shall set aside agency action that
is “unsupported by substantial evidence” if the agency proceeding was subject to §§ 556 and
557 of the APA, thereby implying that an action supported by substantial evidence is not to be
set aside. 5 U.S.C. § 706(2)(E). Agency actions to which this subsection does not apply are to
be set aside if “arbitrary” or “capricious,” § 706(2)(A), which, the D.C. Circuit has held, yields
the same degree of review of facts found by the agency. Association of Data Processing Serv.
Orgs. v. Bd. of Governors. of the Fed. Rsrv. Sys., 745 F.2d 677 (D.C. Cir. 1984). More searching
factual review is available only in the unusual circumstance that the facts “are subject to trial
de novo by the reviewing court.” § 706(2)(F).
121. For representative samples, again chosen from a much larger potential population, see
7 U.S.C. § 499g(c); 12 U.S.C. § 1817(j)(5); 15 U.S.C. § 21(c); 16 U.S.C. § 3373(c); 21 U.S.C. § 355(h);
25 U.S.C. § 4161(d).
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a federal court of appeals has reviewed an agency action, the Supreme Court
may review the court of appeals’ decision on a writ of certiorari,122 but if they
said nothing on this point, such review would be available anyway by virtue
of the provision in Title 28 generally providing for Supreme Court review of
cases in the courts of appeals.123
2. Is Redundancy Undesirable?
What to make of these redundant provisions? How do so many of them find
their way into specific review statutes, and should Congress avoid them?
Some of the statutory appearances of these redundant phrases may be
explained by their age. Some, particularly those that appear in statutes adopted
prior to passage of the APA,124 may have been adopted when it was less clear
that they merely embodied general principles of administrative law that would
be true anyway.125 However, the use of redundancy continues to the present
day,126 so some other cause or causes must also be involved.
It is possible that Congress includes redundant provisions in specific
judicial review statutes in order to eliminate argument and to avoid the cost of
deciding whether a general rule should be followed in the case of a particular
statutory scheme. Certainly, if including a redundant provision in a specific
judicial review statute avoids the costs of litigating some point that nettlesome
parties would otherwise raise, then the provision will have served the public
good.
Moreover, one might think, there can be no harm in statutorily stating
something that would be true whether it is stated or not. Therefore, from a

122. For representative samples, again chosen from a much larger potential population,
see 12 U.S.C. § 5563(b)(4); 15 U.S.C. § 77i(a); 20 U.S.C. § 1416(e)(8)(B); 25 U.S.C. § 4161(d)(4);
29 U.S.C. § 3247(b).
123. 28 U.S.C. § 1254.
124. See, for example, the statutes cited in Stason, supra note 119.
125. Of course, some general principles of administrative law were established before passage
of the APA. Indeed, shortly after the Act’s passage, the Attorney General suggested that the
APA was “a general restatement of the principles of judicial review embodied in many statutes
and judicial decisions.” U.S. Dep’t of Just., Attorney General’s Manual on the Administrative Procedure Act 93 (1947). But others have challenged this view. E.g., Duffy, supra
note 7, at 130–33.
126. See, e.g., 29 U.S.C. § 3247(a)(2) (effective July 1, 2015) (providing that the filing of an
action for review does not automatically stay the agency’s action).
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cost-benefit perspective, one might argue that including a redundant provision
is justified because it has some potential benefit (the avoidance of needless
argument) and hardly any cost—just the low cost of getting the provision into
the draft statute.127 To be sure, in the case of rules such as those noted above, the
rules are so thoroughly ingrained that the benefit of avoiding argument about
them is small. The likelihood, for example, that anyone would even argue that
filing an action for judicial review automatically has the effect of staying the
agency action of which review is sought seems very small, and the likelihood
that a court would accept the argument seems smaller still, so there can be little
benefit to avoiding litigation on this point. But if there is little benefit to these
redundant provisions, they also have hardly any cost, so they may be justified
from a cost-benefit perspective.
It also seems likely that many of these provisions result from the tendency
of legislative drafters to use existing statutes as models. Once a provision gets
into the statute books, it gives rise to progeny, as counsel drafting new specific
judicial review provisions look to existing ones to see what language such
provisions “ought” to contain. If an existing specific review statute says that
seeking judicial review of an agency action shall not automatically operate to
stay the action, that provision will be dutifully copied into the next specific
review statute. After all, it states a policy that the drafter of the new statute
will likely want the new statute to embody, and indeed, the drafter of the new
statute might even worry that if an existing specific review statute states this
principle, but the new statute (perhaps nearby in the same title of the United
States Code) does not, then a court might later draw the inference that Congress
did not desire the principle to apply in the context of the new statute. Better
safe than sorry, the drafter might reason, and so the redundant provision will
be copied into yet another specific judicial review statute.
Should Congress make an effort to break free of this practice? Should
ACUS recommend that Congress avoid including redundant provisions in
judicial review statutes? Such a recommendation seems unjustified from a

127. A more significant cost would arise if the routine inclusion of redundant provisions in
specific judicial review statutes ever led a court to infer that when such provisions are not
included, Congress intends that the background principle they would embody should not
apply. However, this risk seems very small; courts have not, for example, ever inferred that
filing a suit for judicial review should automatically stay an agency action where the relevant
specific judicial review statute is silent on this point.
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cost-benefit perspective. As noted above, if redundant judicial review provisions do no great good, they also do little, if any, harm. Adding redundant
provisions to specific judicial review statutes has little cost, whereas making
a scrupulous effort to avoid stating any rule that would apply whether it is
stated or not would entail costs for legislative drafters, as they would need to
consider each provision in a specific judicial review statute and decide whether
it should be excised as redundant. Probably the most that should be said is that
Congress should be aware that many of the provisions routinely included in
specific judicial review statutes are redundant and that such provisions could
be safely omitted.
Of course, not all provisions in specific judicial review statutes are redundant. Many provisions of such statutes specify important details of review that
make a difference. The following sections of this Sourcebook consider different categories of frequently recurring, non-redundant provisions of specific
judicial review statutes.
RECOMMENDATION:
Congress should be aware that many provisions routinely included in
specific judicial review statutes are redundant. While there is little harm
in including such provisions, Congress should not make special efforts to
include redundant provisions, such as provisions stating that the filing of
an action for review does not automatically stay the agency action of which
review is sought, or that an agency’s factual determinations, if supported
by substantial evidence, shall be conclusive.

B. The Time Within Which to Seek Review
One of the most important functions performed by judicial review statutes
is specifying the time within which a party may seek judicial review. In the
absence of a time limit specific to the kind of agency action involved, the only
applicable time limit would be the six-year statute of limitations generally
applicable to suits against the United States.128 If Congress desires that a shorter

128. 28 U.S.C. § 2401; see Blackletter Statement, supra note 1, at 55.
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time limit apply to judicial review of a particular kind of agency action, it must
say so. Evidently, Congress frequently does desire a shorter time limit, as many
judicial review statutes provide for a much shorter time, such as 10, 30, or 60
days. While the expiration of the time limit does not necessarily foreclose all
judicial review of the agency action involved,129 a party that allows the time
limit to lapse without seeking review will often limit its ability to get judicial
relief. Specification of the time limit for review is therefore an important feature of statutes governing judicial review.
1. Policy Considerations in Specifying the Time Limit
It seems fair to assume that there is little or no policy basis for the exact number chosen as the time limit. If a statute provides that an aggrieved party may
seek judicial review of an agency action only within 60 days after the action
is taken, it could hardly make much difference to anybody if the time limit
were instead specified as 58, 59, 61, or 62 days. What matters is that: (1) there
should be some time limit, so that the agency and any other interested parties
can know whether a given agency action is still subject to judicial challenge;
(2) the time be roughly appropriate for the nature of the action involved (presumably, Congress has some policy basis for desiring a short, medium, or long
time period); and (3) the time limit be clearly stated and easily calculated, so
that no party loses its right to review through procedural error and no time is
wasted arguing about the timeliness of a request for review.

129. For example, when the agency action in question is a rulemaking, the expiration of a
statutorily specified time within which to seek review may not bar all subsequent challenges
to the rule. See, e.g., Alvin Lou Media, Inc. v. FCC, 571 F.3d 1, 8 (D.C. Cir. 2009) (allowing
“constitutional and statutory challenges to an agency’s application or reconsideration of a previously promulgated rule, even if the period for review of the initial rulemaking has expired”
(quoting Graceba Total Commc’ns, Inc. v. FCC, 115 F.3d 1038, 1040 (D.C. Cir. 1997))). See generally Ronald M. Levin, Statutory Time Limits on Judicial Review of Rules: Verkuil Revisited,
32 Cardozo L. Rev. 2203 (2011). Even in the context of an agency adjudication, the failure to
seek judicial review within a statutorily specified time limit does not necessarily bar judicial
review of the agency action in the context of a subsequent enforcement proceeding. See, e.g.,
McKart v. United States, 395 U.S. 185 (1969); United States v. Menendez, 48 F.3d 1401 (5th Cir.
1995). This section of the Sourcebook deals with issues relating to the statutory specification
of the time limit, not the question of what happens after the lapse of the time limit.
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2. Specifying the Time Limit
A time limit for seeking review generally consists of two parts: a length of time
during which a proper party may seek review, and an event that starts the time
running. While it may seem trivial to specify these two parts, review of the
many statutes that perform this task shows that some statutes specify the time
in an unfortunate way that causes some parties to lose their right to review.
a) Specifying the Length of Time
Judicial review statutes use a variety of formulations to specify the length of
time within which to seek review. The exact form of words used is not important. However, it is important to avoid certain forms of words. There is a usual
way to set the time limit and an unusual way. If Congress sets the time limit in
the usual way, experienced counsel know what to do. If Congress sets the time
limit in an unusual way, it sets a trap into which even experienced counsel may
fall and which may cause parties to lose their right to review. This seemingly
small matter therefore has considerable significance. Congress should avoid
setting the time limit in the unusual way.
The usual way to set the time limit is to provide that review may be sought
“not later than” (or “within”) a specified number of days “after” the agency
action being challenged. The drafting manuals of both Houses of Congress
recommend this formulation,130 and innumerable statutes use it or an equivalent formulation.131 This form of setting the time limit is therefore familiar to
counsel who practice federal administrative law. Moreover, a time limit using
this formulation also governs the time within which to appeal a federal district

130. See U.S. House of Representatives, House Legislative Counsel’s Manual on
Drafting Style 57 (1995); U.S. Senate, Senate Legislative Drafting Manual 82 (1997).
The cited pages of both manuals caution against using the form “within [a specified number
of] days of” the agency action, on the grounds of uncertainty, as the time period might refer to
the period before the action, after the action, or both.
131. Hundreds of statutes might be cited here. For just a few examples, see 7 U.S.C. § 8(b)
(allowing review to be sought “within fifteen days after” suspension or revocation); 8 U.S.C.
§ 1324a(e)(8) (allowing review to be sought “within 45 days after” the date of a final order); 8
U.S.C. § 1324b(i)(1) (allowing review “[n]ot later than 60 days after” entry of a final order); 15
U.S.C. § 57a(e)(1)(A) (allowing review “[n]ot later than 60 days after” a rule is promulgated).
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court’s judgment in any litigation,132 and so it is familiar to counsel who engage
in any kind of federal litigation, whether or not involving administrative law.
The unusual way to set the time limit requires that review be sought “prior
to” or “before” a day that is a specified number of days after an agency’s action.
This form of words is used in far fewer federal statutes.133 Another unusual but
equivalent formulation allows review to be sought within a period of a specified number of days “beginning” on the date of the agency’s action.134 When a
statute uses any of these unusual forms of words to specify the time limit for
judicial review, the period allowed is one day shorter than when the governing
statute uses the more usual form of words. Thus, for example, if an agency
took reviewable action on June 1 of some year, a statute that allowed review to
be sought “within 30 days after” agency action would give an aggrieved party
until July 1 of that year to seek review. However, a statute that required review
to be sought “prior to the 30th day after” agency action would give the party
only until June 30. The unusual form of setting the time limit would provide
29 days, rather than 30, in which to seek review.
The difference is slight, but it creates a trap for unwary counsel. As noted
above, most counsel are familiar with the usual formulation for setting the
time limit. If, through habit and familiarity, counsel assumed that the usual
method of calculating the due date applied and failed to notice that a case was
governed by the unusual method, counsel might miscalculate the due date and
seek review one day too late.
Experience shows that this is not an imaginary problem. As can be seen
in the following table, when Congress uses the unusual formulation for setting the due date for seeking judicial review of agency action, some parties

132. In civil cases, such appeals may be taken “within 30 days after” the entry of the district
court’s judgment, except that the time limit is “within 60 days after” the entry of judgment if
any party to the case is the United States, an agency thereof, or an officer thereof sued in an
official capacity or in an individual capacity in connection with official duties. Fed. R. App. P.
4(a)(1)(A)–(B); 28 U.S.C. § 2107(a)–(b). In criminal cases, the appeal time is usually “within 14
days after” the entry of the district court’s judgment. Fed. R. App. P. 4(b)(1)(A)(i).
133. See, e.g., 29 U.S.C. § 655(f) (allowing review to be sought “prior to the sixtieth day” after
a standard is promulgated); 30 U.S.C. § 811(d) (allowing review to be sought “prior to the
sixtieth day” after a standard is promulgated). This formula is reminiscent of the well-known
case of United States v. Locke, 471 U.S. 84 (1985), in which a mining claim was lost because of
the claimant’s failure to comply with a requirement of filing a document “prior to December
31.” The claimant filed on December 31. Id. at 89–90.
134. See, e.g., 33 U.S.C. § 1319(g).
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lose their right to appeal by filing one day late. This embarrassing fate befalls
even corporate and other institutional parties, who presumably have access
to sophisticated counsel.
Statute

Time Limit

Case

26 U.S.C. § 7476(b)(5)

“before the ninetyfirst day after the
day after such
notice is mailed to
such person”

Calvert Anesthesia Assocs. v.
Comm’r of Internal Revenue,
110 T.C. 285 (1988) (dismissing
petition for review filed one
business day late).

29 U.S.C. § 655(f)

“prior to the
sixtieth day”

AFL-CIO v. OSHA, 905 F.2d
1568 (D.C. Cir. 1990) (dismissing
petition filed on the 60th day).

29 U.S.C. § 655(f)

“prior to the
sixtieth day”

Nat’l Ass’n of Mfrs. v. OSHA,
Nos. 00-1473 et al., 2001 WL
376518 (D.C. Cir. Mar. 22, 2001)
(dismissing petition of the
“Daubert Council,” filed on the
60th day).

30 U.S.C. § 811(d)

“prior to the
sixtieth day”

Int’l Union, United Mine Workers
of Am. v. MSHA, 900 F.2d 384
(D.C. Cir. 1990) (dismissing
petition filed on the 60th day).

33 U.S.C. § 1319(g)(8) “within the 30-day
period beginning
on the date the civil
penalty order is
issued”

Slinger Drainage, Inc. v. EPA,
237 F.3d 681 (D.C. Cir. 2001)
(dismissing petition filed on first
business day after the correct
due date).

To be sure, counsel bear much of the blame for these cases. Any counsel
called upon to seek judicial review of any agency action should carefully read
the applicable statute, ascertain the deadline set by the statute, and act accordingly. Moreover, there is, of course, no requirement that counsel wait until the
last possible day to seek review. Counsel are free to seek review earlier, partly as
a precaution against having miscalculated the deadline. Nonetheless, it would
be better if statutes providing for judicial review did not create traps for unwary
counsel. Counsel should be able to spot such a trap and avoid it, but it would
be better still if the trap did not exist in the first place.
The great majority of statutes that set a deadline for seeking judicial review
of agency action use the usual formulation noted above. Statutes that set the
deadline in an unusual way are dangerous. Moreover, such statutes provide
no compensating benefit. There is no policy advantage to using an unusual
method of setting the deadline. No public policy is served by allowing, say,
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a 29- or 59-day period within which to seek review, rather than the more
common 30- or 60-day period. If there were some public policy benefit to
using the unusual method of setting the time limit, that benefit would have to
be weighed against the cost of setting traps for unwary counsel and causing
parties to lose their right of judicial review. Since, however, use of the unusual
method yields no public benefit, but does have a cost, the clear conclusion is
that it should be avoided.
One counterargument must be noted. Even with regard to statutes that
set the time limit in the usual way, cases in which parties seek review one day
late are surprisingly common.135 These cases suggest the possibility that the
problem of parties’ losing their right to review by filing one day late does not
arise from use of an unusual method of setting the deadline, but from general
litigation sloppiness that would occur no matter how the deadline is set. So
long as there is some deadline, there will be some parties that will just barely
miss that deadline.
However, the parties losing their right to review under statutes that set the
deadline in the usual way appear to be primarily individual parties, who, one
would expect, are more likely to have counsel with less familiarity with federal
practice and who are more likely to err.136 By contrast, even corporate and
other institutional parties, who presumably have access to more sophisticated
counsel, have lost their right to seek review when statutes set the deadline the
unusual way. This suggests that setting the deadline in the unusual way does
create a special trap for unwary counsel.
Accordingly, Congress should avoid providing that review must be sought
“prior to” a specified number of days after an agency action (or any equivalent
formulation). In addition, Congress should pass a general “savings statute”
that would alleviate the problem. Such a statute would provide that whenever
a statute permits review of agency action to be sought “prior to” or “before”

135. See, e.g., Shalaby v. Gonzales, 234 F. App’x 692 (9th Cir. 2007) (regarding asylum);
Velazquez v. Gonzales, 185 F. App’x 354 (5th Cir. 2006) (regarding asylum); Miccoli v. Dep’t
of the Army, 311 F. App’x 337 (Fed. Cir. 2008) (regarding Merit Systems Protection Board
(MSPB)); Zacharczenko v. DOJ, 193 F. App’x 968 (Fed. Cir. 2006) (regarding MSPB); Mashack
v. Merit Sys. Prot. Bd., 112 F. App’x 34 (Fed. Cir. 2004).
136. As the cases cited in the previous footnote suggest, the vast majority of cases identified in
researching this Sourcebook in which parties seek review one day late even though the statute
sets the deadline in the usual way involve individuals seeking review either of immigration
decisions or decisions of the MSPB.
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a day that is a specified number of days after the agency action, review may
also be sought exactly that number of days after the agency’s action. Such a
generalized one-day extension of review periods that are stated in the unusual
way would bring them in line with the usual formulation and would eliminate
the pitfall created by these unusual statutes.
RECOMMENDATIONS:
1. Congress should avoid setting the time limit for seeking judicial review of
agency action as “prior to” or “before” the day that is a specified number of
days after the agency’s action, or requiring review to be sought “within” or
“before the expiration of” a period of a specified number of days beginning
on the date of the agency’s action.
2. Congress should pass a savings statute providing that whenever another
statute allows judicial review to be sought “prior to” or “before” the day
that is a specified number of days after an agency’s action, or “within” or
“before the expiration of” a period of a specified number of days beginning
on the date of the agency’s action, such review may also be sought exactly
that number of days after the agency’s action.
b) The Event that Starts the Time
Whatever time period a statute allows for parties to seek judicial review, the
statute must also specify the event that starts the time running. Like specification of the time, specification of the event that starts the time running seems
simple but may be done in a way that causes problems. Again, the overwhelming public policy consideration is that the statute be clear. It matters little to
anyone exactly how long the review period is. What matters to everyone is that
it be easy to determine when the period begins and when it ends.
This problem particularly arises with regard to review of regulations.
In cases in which a statute governs judicial review of an agency rule or regulation, a difficulty may arise from the statement, found in multiple statutes,
that judicial review must be sought within a specified number of days from
the date the regulation is “prescribed” or is “issued.”137 This formulation raises

137. See, e.g., 21 U.S.C. § 360kk(d); 42 U.S.C. § 6306(b); 49 U.S.C. § 32503(a).
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the question of when exactly a regulation is “prescribed” or “issued” so as to
trigger the start of the time for seeking review.
Parties seeking judicial review of such regulations have generally assumed
that a regulation is “prescribed” or “issued” on the date the regulation is published in the Federal Register. In some cases, however, agencies have argued
that the time for seeking review should be measured from some earlier date.
Agencies have claimed that they “issued” a regulation on a date prior to its
appearance in the Federal Register and that the time for seeking review should
be measured from this earlier date, even if there was no public access to the
regulation on the date the agency “issued” it, and such access became possible
only via the Federal Register’s publication process.138 Agencies have argued for
dismissal of petitions for judicial review on this basis.
Courts have rightly rejected this unworthy argument.139 The time to seek
judicial review of an agency action should not be measured from the date of

138. See, e.g., Pub. Citizen Inc. v. Mineta, 343 F.3d 1159 (9th Cir. 2003). In this case, the agency
claimed to have “issued” a regulation on December 6, 2001, but the regulation was not published in the Federal Register until December 18, 2001. What exactly happened on December
6 was not clear. Id. at 1165. The Federal Register publication on December 18 did state that the
regulation was issued on December 6, but the public would have had no way to learn of the
regulation’s existence until at least December 17, 2001, when, in accordance with the Federal
Register’s publication procedures, the documents scheduled for publication in the next day’s
Federal Register were made available for public inspection. Id.; see also Nat. Res. Def. Council
v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95 (2d Cir. 2018) (concerning a regulation
published in Federal Register on July 12, 2017; the agency argued that the regulation was “prescribed” on July 7, when the agency delivered the regulation to the Federal Register).
139. E.g., Mineta, 343 F.3d at 1167–68; Nat. Res. Def. Council, 894 F.3d at 106.
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an event to which the public has no access.140 Moreover, the question of when
a regulation is “issued” should have a clear, uniform answer. As noted earlier,
the exact length of the review period makes little difference to anyone, but it
is very important that the amount of time available be clear.
Even the victories that the parties seeking review have won in these cases
leave future parties vulnerable. While some courts have sensibly held that a
regulation is “prescribed” or “issued” on the date the regulation is published
in the Federal Register,141 other cases have held that the critical date is the date
on which the regulation is made available for public inspection,142 which, under
the Federal Register’s publication process, is the day before the regulation is
published. While using this date is better than using the even earlier date of an
event to which there was no public access, measuring the time to seek review
from the date one day before the date on which a regulation is published in
the Federal Register is obviously counterintuitive and sets yet another trap for
parties seeking review.
There is no public interest in creating ambiguity regarding the time
limit for seeking review. Congress, in passing the statutes discussed in this
section, evidently desired that there be some time limit for seeking review of
regulations. But it seems safe to assume that Congress did not intend to create

140. It is true that in the Mineta case, discussed above, in which the agency argued that the
time to seek review of a regulation should be measured from the date on which the regulation
was “issued,” the “issue date” appeared (albeit rather inconspicuously) in the Federal Register
notice concerning the regulation, which was published 12 days later. See Federal Motor
Vehicle Safety Standards: Occupant Crash Protection, 66 Fed. Reg. 65376, 65421 (2001). Thus,
if the “issue date” had been the event starting the running of the time within which to seek
review, and the parties seeking review had understood this, they would have learned what the
“issue date” was in ample time to seek review within the time limit. Still, this is not a good
reason for using the “issue date” to start the time, for at least two reasons. First, as noted in the
text above, the time should not be measured from an event to which the public has no access.
Even if the public learns of the event before the time to seek review expires, so that they are not
wholly deprived of the ability to seek review, they would lose some, and perhaps a considerable
part of, the time Congress allowed. Second, there appears to be no limit to the amount of time
that might elapse between the date when an agency “issues” a regulation and the date when
the agency submits the regulation for publication in the Federal Register; so if the “issue date”
were the critical date, there would appear to be nothing stopping an agency from “issuing” a
regulation and then waiting until the number of days allowed for review has either nearly or
entirely elapsed before submitting the regulation for publication in the Federal Register. The
time to seek judicial review could then be greatly shortened or perhaps eliminated altogether.
141. E.g., Nat. Res. Def. Council, 894 F.3d 95.
142. E.g., Mineta, 343 F.3d 1159.
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a system whereby judicial review is available but subject to an ambiguous time
limitation that causes unwary parties to lose the right to judicial review.
To solve the problem of ambiguity created by the statutes discussed in this
section, Congress, when setting a time limit for parties to seek judicial review
of regulations, should avoid creating ambiguity regarding the time limit. Having the time run from the date a regulation is published in the Federal Register
is recommended as the clearest way of setting the deadline. Congress should
avoid having the time to review a regulation run from the day the regulation
is “issued,” and it should, in the general review statute recommended herein,
clarify that for these purposes a regulation is “issued” on the date it appears in
the Federal Register. Finally, lest there be any doubt about which date is the date
on which a regulation is “published,” the date of publication should be defined
as the date of the issue of the Federal Register in which the regulation appears
(and not, for example, the date on which the regulation is made available for
public inspection).
RECOMMENDATION:
Congress should ensure that a specific judicial review statute clearly specifies the event that starts the time to seek judicial review running. In the
case of specific judicial review statutes providing for review of agency rules
that must be published in the Federal Register, publication in the Federal
Register should be the event that starts the time running, and the date of
publication should be defined as the date of the issue of the Federal Register
in which the rule appears.

C. The Court in Which to Seek Review
In addition to specifying when to seek review, many specific judicial review
statutes specify where to seek review. By specifying the court in which to
seek review, these provisions resolve two important issues: the level of court
in which to seek review and the geographical venue in which to seek review.

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1. The Level of Court in Which to Seek Review
A specific judicial review statute may specify the court in which a party should
seek review. This is an important function of a specific judicial review statute.
In the absence of any specific statutory instruction, a party seeking review
would do so in federal district court.143 Accordingly, if Congress desires that
judicial review of a particular kind of agency action be sought in some other
kind of court, such as a court of appeals or a specialized court, it must say so
by statute.
This choice is significant because a suit for judicial review of agency action
differs from most other lawsuits. In a typical federal lawsuit, the district court’s
role includes compiling an evidentiary record and determining the facts of
the case.144 The facts thus determined are reviewed deferentially on appeal,145
whereas the district court’s rulings on questions of law are reviewed de novo.
In a typical case, therefore, the district court will often have its most important
impact on the case by virtue of its determinations with respect to facts.
In a case seeking judicial review of agency action, however, the district
court’s role is different. Such a suit, even when it occurs in district court, is
(with rare exceptions) essentially an appellate proceeding. The district court
does not compile an evidentiary record or make findings of fact, but reviews
the record already created and the facts already found by the agency, typically using a deferential standard of review. If the district court’s judgment is
appealed, it receives no deference on either fact or law.
Accordingly, starting a suit for judicial review of agency action in district
court is usually not a productive use of a district court’s time. Since the proceeding is essentially an appellate proceeding, and the district court’s judgment
will receive no deference on appeal, it would typically make sense to skip
the district court proceeding and begin judicial review directly in a court of
appeals. As the Supreme Court put it:

143. This result would follow from the APA’s provision that in the absence of a special statutory proceeding, a party seeking judicial review should use “any applicable form of legal
action.” 5 U.S.C. § 703.
144. In appropriate cases, a jury plays a role in finding the facts. See U.S. Const., amend. VII.
145. See Fed. R. Civ. P. 52.
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The factfinding capacity of the district court is . . . typically unnecessary to judicial review of agency decisionmaking. Placing initial
review in the district court . . . [has] the negative effect . . . of requiring
duplication of the identical task in the district court and in the court of
appeals; both courts are to decide, on the basis of the record the agency
provides, whether the action passes muster under the appropriate APA
standard of review. One crucial purpose of . . . jurisdictional provisions
that place initial review in the courts of appeals is to avoid the waste
attendant upon this duplication of effort.146
This reasoning likely explains the many specific judicial review statutes
that instruct parties seeking review to do so in a court of appeals rather than
in a district court.
To be sure, the preference for starting judicial review actions in a court
of appeals is not universal. Some agency actions are reviewable in district
court, and in some cases for good reason. In some cases, the choice of district
court review is likely because the volume of actions for review would be too
large for appellate courts to handle.147 In some cases, the explanation may be
that Congress anticipated that many cases would not be appealed beyond the
district court level.148 In some cases, however, the use of district court review
may simply be an inferior choice, resulting in wasted effort leading up to the
real review that occurs in a court of appeals. In other cases, Congress provides

146. Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579–80 (10th Cir. 1994) (“Reviews of agency action in the
district courts must be processed as appeals.”).
147. This consideration may, for example, explain why judicial review of Social Security
disability determinations begins in district court. Claimants sought judicial review of over
18,000 Social Security Disability Insurance decisions in FY2014. Jonah Gelbach & David
Marcus, A Study of Social Security Litigation in the Federal Courts 44 (July 28, 2016) (report
to the Admin. Conf. of the U.S.). The same has been true in more recent years. Soc. Sec.
Admin., FY 2021 Congressional Justification 156, available at https://www.ssa.gov/
budget/FY21Files/FY21-JEAC.pdf. This number of cases would impose a substantial burden
on courts of appeals.
148. Social Security Disability Insurance determinations may be an example of this point as
well. Of the 18,000 or so cases appealed from the agency to district court, only about 650 go on
to a court of appeals in a typical year. Gelbach & Marcus, supra note 147, at 35.
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that agencies actions are reviewable in a specialized court, presumably to take
advantage of the specialized expertise that such a court may provide.149
ACUS previously considered issues relating to the forum in which
Congress should provide for judicial review of agency action in ACUS
Recommendation 75-3, The Choice of Forum for Judicial Review of Administrative Action, which, in keeping with the above discussion, recommends
that “[a]djudications based on trial-type hearings and rules required by
statute to be based on a hearing with a determination on the record should
generally be made directly reviewable by courts of appeals,” with the caveat
that “[f]or certain types of formal administrative action, however, initial
district court review may be appropriate in the interest of conserving the
scarce and over-extended resources of the federal appellate system.”150 This
recommendation, although now more than 45 years old, retains its vitality.151
2. The Geographical Venue in Which to Seek Review
Once the kind of court (district court, court of appeals, or specialized court) is
determined, it still remains to specify the geographical venue in which a party
may seek judicial review of agency action. Specific judicial review statutes
commonly provide parties seeking review with multiple options. A common
formulation allows a party seeking review to do so in the judicial district or
circuit where the party resides or has its principal place of business or in the
district court or the court of appeals for D.C. Circuit.152
Because the government has attorneys everywhere in the country and can
defend its actions with roughly equal convenience regardless of where a plain-

149. See, e.g., 19 U.S.C. § 1516a(a) (providing for review of certain actions in the United States
Court of International Trade); 24 U.S.C. § 420(b)(1)(C) (providing for review of certain actions
in the United States Court of Federal Claims); 38 U.S.C. § 7252(a) (providing for review of
certain actions in the Court of Appeals for Veterans Claims).
150. Admin. Conf. of the U.S., Recommendation 75-3, The Choice of Forum for Judicial Review
of Administrative Action, 40 Fed. Reg. 27926 (July 2, 1975).
151. See also Admin. Conf. of the U.S., Recommendation 88-6, Judicial Review of Preliminary
Challenges to Agency Action, ¶ 1(b), 53 Fed. Reg. 39585, 39586 (Oct. 11, 1988) (recommending
that Recommendation 75-3 be applied with “special care” to the specification of the forum in
which to bring a preliminary challenge to agency action); Jeffrey S. Lubbers, A Guide to
Federal Agency Rulemaking 451–55 (6th ed. 2018) (discussing Recommendations 75-3
and 88-6).
152. E.g., 7 U.S.C. § 2; 12 U.S.C. §§ 1786, 5113; 15 U.S.C. § 2618. For an unusual statute that allows
suit in the usual places or in the U.S. Court of Appeals for the Seventh Circuit, see 45 U.S.C. § 355.
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tiff brings suit, it makes sense to allow parties seeking review to choose a venue
that will be convenient for them. Giving the party seeking review a choice
of forum also allows issues to “percolate” in the lower courts; judges from
different circuits can give their views, which may be helpful to the Supreme
Court in ultimately resolving any conflicting rulings that arise. So the common practice of giving the party seeking review a choice with regard to venue
seems appropriate.
On the other hand, modern technological advances mean that private
parties, like the government, can litigate in geographically distant fora with
little additional cost or other burden, so giving parties seeking review less
choice with respect to venue may not be as burdensome today as it would
have been decades ago. In addition, a party given a choice of venue that
is meant to serve the party’s convenience may use the choice for strategic
purposes, choosing to sue in a circuit that has, or is thought likely to create,
favorable substantive law on the issue presented. Congress may also want
to ensure that review of some actions is centralized in a particular court
to promote uniformity. These considerations may underlie the minority
of specific judicial review statutes that give parties seeking review little or
no geographic choice in selecting the court in which to seek review. Some
statutes, for example, permit review in the D.C. Circuit only,153 in the Federal
Circuit only,154 or in some other specific court only.155
3. Jurisdiction
Some specific judicial review statutes, after identifying the court in which a
party may seek judicial review of agency action, go on to provide that that court
will have jurisdiction to hear the resulting case. Other specific judicial review
statutes contain no such jurisdictional provision. Is such a provision necessary?
A federal court must, of course, have subject-matter jurisdiction to hear
a case. This rule applies as much to cases seeking judicial review of agency

153. E.g., 12 U.S.C. §§ 4583, 4634; 15 U.S.C. § 2617; 39 U.S.C. § 3663; 42 U.S.C. § 9613.
154. E.g., 7 U.S.C. § 2461; 38 U.S.C. § 502.
155. E.g., 12 U.S.C. § 4632 (allowing review only in the U.S. District Court for the District
of Columbia); 16 U.S.C. § 539m-10 (allowing review only in the U.S. District Court for the
District of New Mexico); 35 U.S.C. § 32 (allowing review only in the U.S. District Court for the
Eastern District of Virginia).
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action as to any other kind of case.156 Federal courts are courts of limited
jurisdiction,157 and for all federal courts other than the Supreme Court, “two
things are necessary to create jurisdiction, whether original or appellate. The
Constitution must have given to the court the capacity to take it, and an act of
Congress must have supplied it.”158
A case seeking judicial review of a federal agency action invariably
involves a question arising under federal law, so such cases fall within the
“arising under” category of judicial power provided by Article III of the
Constitution. For the same reason, where review is sought in a federal district court, the general federal question jurisdiction statute, 28 U.S.C. § 1331,
would provide the court with statutory jurisdiction.159 Accordingly, when the
specified court is a federal district court, provision of jurisdiction is superfluous. Even without such a provision, the court could exercise jurisdiction
pursuant to § 1331. The availability of a more specific statute under which
the court might also exercise jurisdiction makes no difference.160
When the specified court is a federal court of appeals, however, the situation is less clear. Courts of appeals usually lack jurisdiction over original
proceedings, and there is no appellate analogue to § 1331 on which the appel-

156. See, e.g., Califano v. Sanders, 430 U.S. 99 (1977) (ordering that a suit seeking judicial
review of agency action be dismissed for lack of subject-matter jurisdiction).
157. E.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
158. Mayor of Nashville v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1867).
159. It is difficult to imagine a case where this would not be true. Conceivably, perhaps, a case
might arise in which a party sought judicial review of federal agency action and federal law
entered the case only as a defense, in which case the “well-pleaded complaint rule” would block
jurisdiction under 28 U.S.C. § 1331. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S.
149 (1908). But even that makes little sense as the federal government is generally not suable
on state causes of action unless it consents, in which case the statute providing consent would
raise a federal question that was an essential part of the plaintiff’s case.
160. Conceivably, specific provision for district court jurisdiction in judicial review cases
could make a difference if Congress ever repealed § 1331 or limited it by an amount-in-controversy requirement. In this regard, statutes expressly conferring jurisdiction on district courts
in judicial review cases may be analogized to statutes that provide for district court jurisdiction over cases arising under specified federal statutes. E.g., 28 U.S.C. §§ 1339, 1340, 1343.
Such statutes were significant so long as § 1331 jurisdiction was subject to an amount-in-controversy requirement, as it was before 1976, but they became redundant once § 1331 was
amended to provide for district court jurisdiction over cases arising under any federal statute
without regard to the amount in controversy. Still, Congress has retained these specific
statutes, perhaps to guard against the possibility that the general § 1331 might be repealed or
limited someday.
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late court’s jurisdiction could rest.161 Therefore, in most cases, when a statute
authorizes a party to seek judicial review in a court of appeals but does not
expressly confer jurisdiction on the court to hear the resulting case, the court
of appeals would lack jurisdiction unless the statute implicitly confers jurisdiction on the court.
To be sure, when Congress instructs parties to seek judicial review of
agency action in a specified court, the implication that Congress intends that
court to have jurisdiction to hear the resulting case is strong, as otherwise
seeking judicial review there would be futile. Still, one might imagine that
federal courts would be reluctant to exercise jurisdiction conferred on them
only implicitly. As noted above, it is a fundamental constitutional principle that
federal courts are courts of limited subject-matter jurisdiction. An oft-stated
corollary to this principle is that statutes conferring jurisdiction on federal
courts should be narrowly construed.162 It is sometimes even said that federal
courts “must find their jurisdiction in express provisions of federal statutes.”163
One might imagine, therefore, that federal courts would demand that statutes
confer jurisdiction on them expressly, not implicitly.
In fact, however, federal courts of appeals have exercised jurisdiction
notwithstanding this potential problem. These courts are evidently content
to conclude that a statute authorizing a party to seek judicial review of agency
action in a court of appeals necessarily, albeit implicitly, confers jurisdiction
on the court to hear the resulting case. Cases considering jurisdiction under

161. 28 U.S.C. § 2342 provides for courts of appeals to have jurisdiction to conduct judicial
review in multiple situations, but only with regard to review of the limited list of agency
actions specified in the section.
162. E.g., Pritchett v. Office Depot, Inc., 420 F.3d 1090 (10th Cir. 2005); Phillips v. Osborne,
403 F.2d 826 (9th Cir. 1968).
163. In re Am. Home Furnishers’ Corp., 296 F. 605, 608 (4th Cir. 1924) (emphasis added); see
also Harrington v. Mure, 186 F. Supp. 655, 658 (S.D.N.Y. 1960) (“A federal court must find its
jurisdiction in express provisions of federal statutes . . . .”).
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such statutes typically conclude that it exists without even mentioning that the
statute fails to confer such jurisdiction expressly.164
It would seem, therefore, that when a statute authorizes a party to seek
judicial review of agency action in a specified court, the statute need not state
expressly that the court shall have jurisdiction to hear the resulting case. Such
jurisdiction will be inferred from the provision authorizing the party to seek
judicial review.
Still, there would be no harm in conferring such jurisdiction expressly,
and inasmuch as limited jurisdiction is a fundamental principle of federal
courts, conferring jurisdiction expressly is probably the superior practice. Best
of all, however, would be to settle the question as a general matter. Congress
could, as part of the general judicial review statute recommended in this
Sourcebook, include a provision that whenever a statute provides that a party
may seek judicial review of an agency action in a specified federal court, the
specified court shall have jurisdiction to hear the resulting case. Passing such
a general statute would put the matter beyond argument and would relieve
Congress of the necessity of remembering to include a jurisdictional provision
in every judicial review statute.
RECOMMENDATION:
Congress should pass the general judicial review statute recommended by
this Sourcebook, which should include the following provision: “Whenever
a statute provides that a party may seek judicial review of an agency action
in a specified federal court, the specified court shall have jurisdiction to
hear the resulting case.”

164. For example, in 32 County Sovereignty Committee v. Dep’t of State, 292 F.3d 797, 798–99
(D.C. Cir. 2002), the court determined that it had jurisdiction under 8 U.S.C. § 1189, which
authorizes organizations designated as “foreign terrorist organizations” by the Secretary of
State to seek judicial review in that court but does not expressly state that the court shall have
jurisdiction over the resulting case. See also Bryson v. United States, 381 F. Supp. 3d 124 (D.
Mass. 2019) (holding that the court of appeals had exclusive jurisdiction over the case under
47 U.S.C. § 521, even though that statute does not expressly confer jurisdiction on any court).
There appear to be no cases to the contrary, or indeed, cases in which a contrary argument is
even put forward.
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D. The Mechanism by Which to Seek Review
Specific judicial review statutes usually specify the mechanism by which a
party may seek judicial review of agency action. Such statutes may specify
the type of document that the party should file to initiate review, the required
content of the document, and other procedural details.
1. The Style of the Document Used to Initiate Review
In specifying the mechanism by which a party may seek review, a specific judicial review statute typically indicates what kind of document a party should file
to initiate review. Several different mechanisms for initiating review appear in
the statutes. The two most common are that the party seeking review should
file a petition for review or an appeal.
Slight variations in the wording are common. A specific judicial review
statute may, for example, require a party to file “a petition for review”165 of
the agency’s order, a “petition praying”166 that order be set aside, a “petition
requesting”167 that the order be set aside, or simply a “petition.”168 Statutes
providing instead for an “appeal” may require the party seeking review to
“appeal”169 or to file a “notice of appeal.”170 One rare, hybrid statute requires
the filing of a notice of appeal and a petition.171
Other mechanisms for seeking judicial review include instructing the
party seeking review to “bring an action”172 or “begin a proceeding.”173 A small
number of older statutes still state that the party seeking review should file a

165. E.g., 7 U.S.C. § 21; 12 U.S.C. §§ 3105, 5567; 15 U.S.C. §§ 766, 2056a; 16 U.S.C. § 1374;
30 U.S.C. § 804. These examples and those in the following footnotes are by no means exhaustive, but only illustrative.
166. E.g., 7 U.S.C. §§ 8, 194, 1600; 12 U.S.C. § 1786; 21 U.S.C. § 355; 27 U.S.C. § 204; 30 U.S.C. § 816;
42 U.S.C. § 3545.
167. E.g., 7 U.S.C. §§ 27d, 948; 12 U.S.C. § 4623; 15 U.S.C. § 78o; 52 U.S.C. § 30109.
168. E.g., 7 U.S.C. § 18; 16 U.S.C. § 824k(f); 21 U.S.C. § 877.
169. E.g., 19 U.S.C. § 1641; 23 U.S.C. § 131; 35 U.S.C. § 141; 42 U.S.C. § 291h.
170. E.g., 7 U.S.C. §§ 2621, 4314; 15 U.S.C. § 5408; 16 U.S.C. § 4016.
171. 7 U.S.C. § 499g(c).
172. E.g., 12 U.S.C. §§ 191, 203, 205; 15 U.S.C. §§ 2055, 4015.
173. E.g., 26 U.S.C. §§ 982, 6038.
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“bill in equity”174—a somewhat surprising formulation, as bills in equity were
abolished by the merger of law and equity in 1938, which is more than 80 years
ago, and it is no longer possible to file such a bill in federal court.175
From a policy perspective, it plainly makes no difference what name is
used for the document that initiates review. Whether the document be styled
a petition for review, a notice of appeal, or something else, has no effect on the
substance of the case. Accordingly, one would hope to find that it makes no
practical difference either. A party should suffer no penalty if it files a notice of
appeal in a case in which it should have filed a petition for review, or vice versa.
Thankfully, this appears to be the case, at least most of the time. Courts
are usually willing to overlook merely formal errors such as filing a notice of
appeal when a statute calls for a petition for review,176 or vice versa.177 But this
is not always true; courts do sometimes exercise what they regard as their
discretion to decline to treat one as the other.178
Of course, a party’s counsel, before initiating judicial review, should check
the applicable statute, determine what form the request for review should
take, and seek review using the proper form. But inasmuch as the style of the
document by which review is sought can make no difference to anyone, the
judicial practice of disregarding errors in the style and of being willing to treat
a notice of appeal as a petition for review (or vice versa) is appropriate. Deviations from this practice appear to be rare, and, accordingly, the problem of
parties losing their right to review by filing the wrong kind of document, if it
exists at all, is at worst a small one. Therefore, it would probably not be worth
asking Congress to pass a statute for no other purpose than to fix this problem,
but if Congress passes a statute to address the various difficulties that this
Sourcebook identifies in specific judicial review statutes, such a statute could

174. E.g., 7 U.S.C. §§ 608c, 1365.
175. See Fed. R. Civ. P. 7(a) (listing the pleadings permitted in federal court).
176. E.g., Cassell v. FCC, 154 F.3d 478 (D.C. Cir. 1998) (treating a notice of appeal as a petition
for review); see also, e.g., Paul v. INS, 348 F.3d 43 (2d Cir. 2003) (treating a motion for extension of time as a petition for review); Kosanowsky v. U.S. Dep’t of the Army, 659 F. Supp. 872
(S.D.N.Y 1987) (treating a letter to the clerk of a court as a petition for review).
177. E.g., Hydro Eng’g v. United States, 113 F.3d 1254 (Fed. Cir. 1997) (unpublished table decision) (treating a petition for review as a notice of appeal); Camien v. Comm’r, 420 F.2d 283, 284
n.2 (8th Cir. 1970) (same).
178. See, e.g., Rodela v. Comfort, 118 F. App’x 358, 360 n.2 (10th Cir. 2004) (“[W]e decline to
treat Rodela’s habeas petition and notice of appeal as a petition for review.”).
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appropriately include a provision ratifying the judicial practice described above
by officially providing that a notice of appeal should be treated as a petition
for review, or vice versa, when necessary to preserve a party’s right to review.
Indeed, in considering this issue, Congress might also wish to observe that
seeking judicial review of agency action by filing a “notice of appeal” is, at least
usually, somewhat incongruous. The filing of a notice of appeal suggests the
initiation of an appellate proceeding, and while it is true, as observed earlier,179
that judicial review of agency action is, in practical terms, an appellate proceeding, it is really an original proceeding. Although it reviews an action taken
by a previous decisionmaker, a judicial action that reviews an administrative
decision is not technically an “appeal,” and the Supreme Court has therefore
held that such review cannot be placed within its appellate jurisdiction.180
Indeed, the characterization of judicial review of agency action as original,
rather than appellate, jurisdiction was at the heart of the Supreme Court’s
decision in Marbury v. Madison.181 The Supreme Court has approved its jurisdiction to hear “appeals” of tribunals other than Article III courts provided
they are acting in a “judicial capacity,”182 and thus a “notice of appeal” might
sometimes appropriately initiate judicial review of agency action. However,
specific judicial review statutes do not appear to confine the use of that term
to situations in which it is appropriate, but use it in many situations when
“petition for review” would be a superior term.183 While no great harm is done
by using the term “notice of appeal” for the document that initiates review of
agency action in an inferior federal court (as inferior courts are not bound by
the differentiation between original and appellate jurisdiction that the Constitution applies to the Supreme Court), it would probably be better to use the
term “petition for review” uniformly for cases initiated in a court of appeals.

179. See supra Part V.C.1.
180. Pope v. United States, 323 U.S. 1, 13 (1944).
181. 5 U.S. (1 Cranch) 137, 175–76 (1803).
182. Pope, 323 U.S. at 13 (approving appellate jurisdiction over decision rendered by the Court
of Claims in its “judicial capacity”).
183. E.g., 7 U.S.C. § 6009(c)(4) (allowing the filing of a “notice of appeal” from a penalty
imposed by the Secretary of Agriculture); 30 U.S.C. § 1462(b) (allowing the filing of a “notice
of appeal” from a penalty imposed by the Administrator of the National Oceanic and Atmospheric Administration).
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For cases initiated in a district court, however, it is probably best for Congress to require review to be sought by the filing of a complaint. A complaint is
the document normally used to initiate a case in district court,184 and requiring
a case in district court to be initiated by a different kind of document, such as
a petition for review, sets up a potential conflict with the Federal Rules of Civil
Procedure, as Rule 7, which lists the permitted pleadings, allows a complaint
but makes no provision for a “petition for review” or other document.185 District courts and counsel bringing cases in them will be highly familiar with
complaints, and this familiar document is probably best for starting cases in
district court.
RECOMMENDATIONS:
1. When providing for judicial review of agency action, Congress should
normally use the term “petition for review” to describe the document that
initiates review for cases to be brought in a court of appeals and the term
“complaint” for the document that initiates review for cases to be brought
in a district court.
2. If Congress passes the general statute recommended herein, the statute
should include a provision stating that, when necessary, a court of appeals
shall treat a notice of appeal as a petition for review, or vice versa, and more
generally that an error in the style of the document that seeks judicial review
of agency action that does not affect the substantive rights of the parties
shall be disregarded.
2. The Content of the Document Initiating Review
The great majority of statutes that require the filing of a petition for review or
a notice of appeal simply state that such a notice or petition is required without
specifying the required content of the notice or petition. For cases brought
in a court of appeals, this salutary practice allows the required content of the
document initiating review to be determined by Federal Rule of Appellate
Procedure 15, which requires only that the document name the parties seek-

184. Fed. R. Civ. P. 3.
185. Id. at 7.
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ing review, name the agency as the respondent, and specify the order or part
thereof to be reviewed.
Some statutes do specify the content for the notice of appeal or petition
for review. As noted earlier, a provision of the Hobbs Act, 28 U.S.C. § 2344,
contains specific requirements for petitions for review filed under that act.186
The most notable other provision of this kind is probably 47 U.S.C. § 402(c),
which provides that in cases in which review of orders of the Federal Communications Commission (FCC) is sought by appeal, the notice of appeal
shall contain a concise statement of the nature of the proceedings as
to which the appeal is taken; a concise statement of the reasons on
which the appellant intends to rely, separately stated and numbered;
and proof of service of a true copy of said notice and statement upon
the Commission.187
A small number of other specific review statutes similarly provide requirements for the notice of appeal or petition for review.188
As noted earlier, by operation of 28 U.S.C. § 2072, Federal Rule of Appellate Procedure 15 superseded the more specific requirements of the Hobbs
Act.189 By similar reasoning, Rule 15 should have superseded all more specific
statutory requirements in effect at the time of its adoption, such as 47 U.S.C.
§ 402(c). Therefore, although practice manuals still advise counsel seeking
review of FCC decisions to include “a concise statement of the reasons” on
which they intend to rely,190 and although prudent counsel would probably
choose to follow this advice, such a statement should, strictly speaking, be
unnecessary.
The common statutory format of simply requiring a petition for review,
without statutorily specifying the contents of the petition, should be preferred

186. See supra Part IV.B.2.
187. 47 U.S.C. § 402(c).
188. E.g., 7 U.S.C. § 499g (requiring that the petition “shall recite prior proceedings before the
Secretary and shall state the grounds upon which the petitioner relies to defeat the right of the
adverse party to recover the damages claimed, with proof of service thereof upon the adverse
party”); 8 U.S.C. § 1252(c) (requiring a petition for review of an order of removal to state
whether a court has upheld the validity of the order).
189. Am. Paper Inst. v. Interstate Com. Comm’n, 607 F.2d 1011 (D.C. Cir. 1979); see supra Part
V.B.2.
190. E.g., 23A Am. Jur. Pleading & Practice Forms, Telecommunications § 43.
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over statutes that specify particularized requirements for such petitions.
Presumably, the purpose of a requirement for more specific content, and specifically for a requirement that the petition state the issues that form the basis of
the petitioner’s challenge to the agency action, is to allow earlier identification
of the issues that will come before the court. However, as the drafters of Federal Rule of Appellate Procedure 15 observed, such requirements are “rarely
useful either to the litigants or to the courts” because “[t]here is no effective,
reasonable way of obliging petitioners to come to the real issues before those
issues are formulated in the briefs.”
Determining what content the petition should have is a matter best left to
the judicial branch. The drafters of Rule 15 determined that it is best simply
to require the petition to identify the parties seeking review and the order of
which review is sought. Omitting any more particularized requirements for
the petition from specific judicial review statutes allows Rule 15 to operate.
RECOMMENDATION:
When providing that a party may seek judicial review by filing a petition
for review, Congress should not specify the required content of the petition
for review.
3. Service of the Document Initiating Review
Once a party files a document initiating a judicial review proceeding, that document, like most litigation documents, must be served on the other parties to
the litigation, which would typically include the agency that issued the order of
which review is sought. Specific judicial review statutes provide two principal
methods by which this service may be accomplished: some require the party
seeking review to serve the document on the agency;191 others provide that
the clerk of the court in which the document is filed shall forward a copy to
the agency.192 Statutes that require the party seeking judicial review to serve a
copy on the agency that issued the order of which review is sought sometimes

191. E.g., 8 U.S.C. § 1252(b)(3)(A); 12 U.S.C. § 2268(d); 33 U.S.C. § 1321(b)(6)(G).
192. E.g., 7 U.S.C. §§ 8(b), 194(b); 12 U.S.C. § 1786(j); 15 U.S.C. § 21(c).
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require that service be made “simultaneously” with the filing of the document
that initiates the request for judicial review.193
There seems to be little, if any, rhyme or reason behind the decision
whether the responsibility for serving the document on the agency falls to the
party seeking review or to the clerk of the court in which review is sought.
Some statutes require one and some the other, but the choice seems to follow
no particular plan or rationale. Fortunately, in the great majority of cases, it
makes no practical difference who is responsible for notifying the agency that
review has been sought; whether this task falls to the party seeking review or
the clerk of the court, the agency receives notice and the case proceeds.
There is, however, at least one reason why it might matter who has the
responsibility of notifying the agency that review of one of its orders has
been sought. This apparently trivial detail has the potential to affect cases in
which multiple parties seek review of the same agency order and engage in a
“race to the courthouse” in which each party tries to file first so as to get the
advantage of having review take place in that party’s preferred forum. In such
cases, it might matter who transmits the document initiating the case to the
agency because of the wording of 28 U.S.C. § 2112(a), which is the statute that
addresses the “race to the courthouse” situation.
ACUS is quite familiar with this statute. Decades ago, ACUS identified the
“race to the courthouse” situation as undesirable. This situation arises when
multiple parties seek review of the same agency order. Prior to ACUS’s Recommendation 80-5, 28 U.S.C. § 2112 provided that when multiple parties seek
review of the same agency order in different courts, the court in which the first
petition for review is filed has jurisdiction to the exclusion of the others.194 This
rule led to unseemly “races to the courthouse,” in which parties vied to file the
first petition for review of an agency order, so that they could gain the tactical
advantage of having review take place in their preferred forum. Courts were
required to conduct rather absurd investigations into which of multiple petitions for review had been filed first,195 and the priority given to the first-filed
petition favored wealthier parties who could, for example, afford to pay agents

193. E.g., 12 U.S.C. § 2268(d); 33 U.S.C. § 1321(b)(6)(G).
194. See supra Part IV.C.
195. See, e.g., City of Gallup v. FERC, 702 F.2d 1116, 1124 (D.C. Cir. 1983) (noting that one
petition was time-stamped seven seconds before another).
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to wait in an agency’s file room and in a courthouse to detect the exact moment
an order was issued and to file a petition for review immediately thereafter.196
ACUS’s Recommendation 80-5, Eliminating or Simplifying the “Race to the
Courthouse” in Appeals from Agency Action, addressed this situation.197 Calling
the race to the courthouse an “unedifying” spectacle, ACUS recommended
that Congress end it.198 ACUS recommended that when multiple petitions
for review of the same order are filed in different courts, a random selection
process be used to decide which court would consider the case. Specifically,
ACUS recommended:
Congress should amend 28 U.S.C. § 2112(a) to provide that, if petitions
to review the same agency order have been filed in two or more courts
of appeals within ten days after the order was issued, the agency is to
notify an appropriate official body, such as the Administrative Office
of the United States Courts, of that fact; that the appropriate official
body, on the eleventh day after the issuance of the order, is to choose
from among the circuits in which petitions have been filed according
to a scheme of random selection and notify the agency of that choice;
and that the agency is then to file the record of the proceeding in the
court so chosen, which will take jurisdiction and conduct the review
proceeding, subject to the existing power, which would not be changed,
to transfer the case to any other court of appeals for the convenience of
the parties in the interest of justice.199
Congress implemented ACUS’s recommendation in 1988.200 However,
the particular wording that Congress chose creates a potential problem. The
current version of 28 U.S.C. § 2112 provides:

196. See id. at 1119 (describing how parties had agents waiting in the agency’s file room with
walkie-talkies, so they could send the word out as soon as an anticipated order was issued).
The ACUS report that led to ACUS Recommendation 80-5 noted how the first-to-file rule
created a systemic bias in favor of wealthier parties. Thomas O. McGarity, Multi-Party Forum
Shopping for Appellate Review of Administrative Action, 129 U. Pa. L. Rev. 302, 325 (1980).
197. Recommendation 80-5, supra note 15.
198. Id.
199. Id. ¶ 1.
200. Act of Jan. 8, 1988, Pub. L. No. 100-236, 101 Stat. 1731 (amending 28 U.S.C. § 2112(a)).
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If within ten days after issuance of the order the agency, board, commission, or officer concerned receives, from the persons instituting the
proceedings, the petition for review with respect to proceedings in at
least two courts of appeals, the agency, board, commission, or officer
shall proceed in accordance with paragraph (3) of this subsection.
If within ten days after the issuance of the order the agency, board,
commission, or officer concerned receives, from the persons instituting
the proceedings, the petition for review with respect to proceedings in
only one court of appeals, the agency, board, commission, or officer
shall file the record in that court notwithstanding the institution in
any other court of appeals of proceedings for review of that order. In all
other cases in which proceedings have been instituted in two or more
courts of appeals with respect to the same order, the agency, board,
commission, or officer concerned shall file the record in the court in
which proceedings with respect to the order were first instituted.201
Paragraph (3) provides for the random selection recommended by
ACUS.202 But the highlighted phrase in § 2112 suggests that the random selection process is triggered only if the agency involved receives multiple petitions
for review from the persons instituting the proceedings. The negative implication
of this phrasing is that a petition for review received by the agency within the
10-day period, but not from the party instituting the proceedings, does not
count for purposes of the first sentence. Accordingly, if within the 10-day
period the agency receives one petition for review from a party instituting proceedings for judicial review and another petition that is forwarded by the clerk
of a court in which it is filed, then the second sentence, not the first, applies,
and no random selection would occur. Only the court that received the petition
that was sent to the agency by the party seeking review would have jurisdiction.
Would a court read § 2112 so literally? Yes. Exactly the fact pattern
hypothesized above occurred in a D.C. Circuit case in 2014, and the court
gave effect to the text of § 2112.203 It ruled that a petition for review received by
the agency within the 10-day period, but only because it had been forwarded to

201. 28 U.S.C. § 2112(a)(1) (emphasis added).
202. Id. § 2112(a)(3).
203. Remington Lodging & Hosp., LLC v. NLRB, 747 F.3d 903 (D.C. Cir. 2014).
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the agency by a court clerk, did not count for purposes of the first sentence of
§ 2112(a)(1).204 Accordingly, the party that had filed that petition was deprived
of the opportunity for its preferred forum to be chosen in a random selection
process; the case was simply transferred to the court chosen by the party that
had both filed a petition and sent it to the agency.
Although the court in that case said that requiring a petition to be sent
to the agency by the party seeking review “makes a good deal of sense,”205
the court’s reasoning was strained. The court said that § 2112’s requirement
“alerts the agency that the petitioner cares about its chosen forum and, as the
[agency] explains, imposes the burden of compliance on the party seeking
to benefit from section 2112(a).”206 But it is also possible that a party would
be deprived of its chance at winning the random selection process simply
because the party reads the specific judicial review statute applicable to its
case, notes that it requires the court clerk to transmit the document initiating
review to the agency, and therefore leaves it to the court clerk to do so, not
realizing that this apparently trivial point will make a crucial difference for
purposes of § 2112(a)(1).
ACUS made no suggestion in Recommendation 80-5 that a petition for
review must be transmitted to the agency by the party initiating review in order
for the petition to count for purposes of § 2112. Imposing such a requirement
tends to reintroduce the bias in favor of wealthier, more sophisticated parties,
who are more likely to be aware of the particulars of § 2112. Congress should
eliminate the phrase “from the persons instituting the proceedings” from the
statute.
As an additional point, the requirement in some statutes that a party
seeking review must transmit the document initiating review to the agency
“simultaneously” with filing it in court serves no discernible purpose. It could
conceivably cause a court to dismiss an otherwise worthy case on the ground
that the petition for review, although transmitted to the agency, was not
transmitted “simultaneously.” While ACUS’s research has uncovered no such
case, and so this problem would not be worth Congress’s attention by itself, if
Congress passes the general savings statute recommended for solving the more

204. Id.
205. Id. at 905.
206. Id.
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significant problems noted in this Sourcebook, it should include a provision
indicating that a requirement that a document be served “simultaneously” with
its filing is satisfied if the document is served with reasonable promptness.
But to avoid litigation over what constitutes reasonable promptness, it would
be best if the statute required service within some set period, such as 14 days.
RECOMMENDATIONS:
1. Congress should amend 28 U.S.C. § 2112(a)(1) by striking the phrase
“, from the persons instituting the proceedings, the” therefrom and inserting “a” in its place, in both places where the phrase occurs.
2. When Congress requires the party seeking judicial review to serve the
document initiating review on the agency that issued the order of which
review is sought, it should not require that such service be made “simultaneously” with the filing of the document.
3. Congress should provide that whenever a specific judicial review statute
requires that a party seeking review serve the document initiating review on
the agency that issued the order of which review is sought “simultaneously”
with filing the document, this requirement is satisfied if the document is
served on the agency within a set number of days (perhaps 14) of the filing
of the document.

E. Relief Pending Review
A party seeking judicial review of agency action may desire interlocutory relief
while the action for review is pending. As noted earlier, innumerable specific
judicial review statutes provide that the filing of a suit for judicial review does
not automatically stay the agency action of which review is sought.207 These
provisions do, however, typically permit the court in which review is sought
to order a stay of the agency action pending review.208 Such preliminary judi-

207. See supra Part V.A.1.
208. For representative examples, see 12 U.S.C. § 4583; 15 U.S.C. § 80a-9; 21 U.S.C. § 355(h);
29 U.S.C. § 655.
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cial relief is generically authorized by § 705 of the APA.209 Section 705 also
authorizes an agency to postpone the effective date of its own action pending
judicial review when justice so requires.210
Granting a stay pending review is equivalent to granting a preliminary injunction, and therefore, on a motion for a stay, courts apply the same
four-factor test that governs the granting of preliminary injunctions: they
consider the movant’s likelihood of success on the merits; whether the movant
will suffer irreparable harm if a stay is not granted; whether other parties
will suffer irreparable harm if a stay is granted; and where the public interest
lies.211 An agency considering whether to stay its own order pending judicial
review must balance the same equities, although it need not follow the judicial
four-factor test exactly.212
Some specific judicial review statutes provide, contrary to the normal
principles described above, that the filing of an action for judicial review shall
automatically stay the agency action of which review is sought.213 In some cases,
the stay must operate until review is no longer pending;214 in others, the statute
merely reverses the normal presumption and provides that the agency action
shall be stayed unless the reviewing court orders otherwise.215 Still others
provide for some intermediate arrangement.216 One common circumstance
in which specific judicial review statutes provide for automatic stays is when

209. 5 U.S.C. § 705.
210. Id.
211. E.g., Nken v. Holder, 556 U.S. 418, 425–26 (2009).
212. Bauer v. DeVos, 325 F. Supp. 3d 74, 106–07 (D.D.C. 2018).
213. See, e.g., 15 U.S.C. § 80a-42; 15 U.S.C. § 8302(c)(4); 20 U.S.C. § 1234g, 23 U.S.C. § 131;
26 U.S.C. § 3310; 26 U.S.C. § 6213(a); 42 U.SC. § 504.
214. See, e.g., 15 U.S.C. § 8302(c)(4); 20 U.S.C. § 1234g; 23 U.S.C. § 131; 26 U.S.C. § 6213(a);
27 U.S.C. § 204(h).
215. See, e.g., 15 U.S.C. § 80a-42; 27 U.S.C. § 204(h).
216. See, e.g., 26 U.S.C. § 3310(d)(2) (providing for an automatic stay of at least 30 days, after
which the court may order a further stay); 42 U.S.C. § 504(d)(2) (providing for an automatic
stay for a period of 30 days, after which the court may grant further interim relief).
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the party seeking review of agency action is itself a governmental party,217 but
other statutes provide for automatic stays even outside this context.218

F. Bond or Other Security
Provisions for judicial review of agency action typically say nothing about
whether the party seeking review must be required to post bond or other
security. Some specific judicial review statutes, however, provide that a party
seeking review must post a bond. Such provisions most commonly occur when
the action of which review is sought is the imposition of a penalty to be paid,
especially to another private party.219 In such cases a bond requirement assures
the party to whom the penalty would be payable that the party seeking review
will still have sufficient assets to pay the penalty if the agency action is upheld.
Some specific judicial review statutes provide that a court may require
security when issuing preliminary injunctive relief.220 Such a provision merely
restates what would be true anyway under either Rule 65(c) of the Federal
Rules of Civil Procedure or Rule 8(a)(2)(E) of the Federal Rules of Appellate
Procedure. Indeed, even though § 705 of the APA, which generally provides for
relief pending judicial review of agency action, says nothing about requiring
security for such relief, a court may require a party seeking such relief to post
an appropriate bond.221

217. See, e.g., 23 U.S.C. § 131 (addressing review sought by states); 26 U.S.C. § 3310 (same);
42 U.S.C. § 504 (same); 15 U.S.C. § 8302(c)(4) (addressing review of actions of the Commodity
Futures Trading Commission sought by the Securities and Exchange Commission or vice versa).
218. See, e.g., 26 U.S.C. § 6213(a); 27 U.S.C. § 204(h). In one interesting case, a statute that on
its face provides that the bringing of “any action” for judicial review shall trigger an automatic
stay was judicially construed to provide for an automatic stay only when the U.S. Attorney
General seeks judicial review, in light of indications to that effect in the statute’s legislative
history. First Midland Bank & Trust Co. v. Chem. Fin. Corp., 441 F. Supp. 414 (W.D. Mich.
1977); see 12 U.S.C. § 1849(b). As the date of the opinion shows, that case occurred before the
movement toward textualism within the federal judiciary; such a case might well come out
differently today.
219. E.g., 7 U.S.C. § 18(c) (requiring bond from a party seeking review of reparations ordered
under the Commodity Exchange Act); 7 U.S.C. § 499g(c) (similar, with respect to the Perishable Agricultural Commodities Act).
220. E.g., 30 U.S.C. § 1270(d).
221. E.g., B&D Land & Livestock Co. v. Conner, 534 F. Supp. 2d 891 (N.D. Iowa 2008).
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G. Expedition
Suits seeking judicial review of agency action typically have the same priority
as any other kind of lawsuit. Some specific judicial review statutes, however,
provide for expedition. Such provisions may take different forms. Some expedition provisions go so far as to require a reviewing court to decide a case
within a specified number of days.222 Others, without specifying such a precise
deadline, state that reviewing courts shall “advance” cases on their docket.223
Still others simply state that courts conducting judicial review shall do so on
an “expedited” basis, without specifying more particularly what that means.224
In such a case, a court might impose an accelerated briefing schedule and/or
move the case ahead in the queue of cases awaiting argument.225
As to the reasons for expedition, some provisions for expedition are found
in statutes that provide for review to be sought by a government entity.226 In
such cases the provision for expedition may represent respect for the entity
involved. Other statutes provide for expedition in matters evidently requiring
urgent decision, such as those involving vital financial institutions.227 In still
other cases, statutes call for expedition for no very clear reason.228

222. E.g., 8 U.S.C. § 1535(c)(4)(B) (“the Court of Appeals shall issue an opinion not later than
60 days after the date of the issuance of the final order of the district court.”).
223. E.g., 8 U.S.C. § 1252(e)(3)(D) (“It shall be the duty of the District Court, the Court of
Appeals, and the Supreme Court of the United States to advance on the docket and to expedite
to the greatest possible extent the disposition of any case considered under this paragraph.”).
224. E.g., 12 U.S.C. § 5382(a)(2)(A)(iii) (“The Court of Appeals shall consider any appeal under
this subparagraph on an expedited basis.”); 15 U.S.C § 78o(j)(5)(A) (“Any proceeding to challenge any such rule shall be expedited by the Court of Appeals.”).
225. Most courts of appeals have local rules or procedures providing for expedited cases. See,
e.g., 1st Cir. Internal Operating Proc. VII(B); 5th Cir. R. 27.5; 9th Cir. R. 27-12.
226. E.g., 7 U.S.C. § 27d(c)(1) (providing for expedition when review is sought by the Board of
Governors of the Federal Reserve System); 15 U.S.C. § 6714(b) (providing for expedition when
review is sought by a state or federal insurance regulator to resolve a conflict between them).
227. E.g., 12 U.S.C. § 5382(a)(2)(A)(iii) (providing for expedited appellate review of district
court orders in cases seeking review of action taken with regard to financial companies that
are in danger and the failure of which would have serious adverse effects on financial stability
in the United States).
228. E.g., 7 U.S.C. § 228b-3(d) (providing for expedition of cases in which a live poultry dealer
seeks review of a penalty imposed under the Packers and Stockyards Act).
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H. Provisions Regulating Permitted Arguments (“Issue
Exhaustion” Provisions)
Some specific judicial review statutes expressly prohibit parties from seeking
review of an agency action on the basis of an argument that was not raised in
proceedings at the agency itself.229 Such a prohibition is known as an “issue
exhaustion” requirement. Other specific judicial review statutes contain no
such express prohibition. Does stating this prohibition expressly make a difference, and if so, is the prohibition desirable?
1. The Background Rule on Issue Exhaustion Requirements
Do statutory issue exhaustion provisions make a difference? Or do they,
like the statutory provisions discussed in Part V.A, merely restate a rule that
would apply anyway? The answers to these questions are complex. Statutory
issue exhaustion provisions cannot be called redundant, but neither are they
always essential.
In the absence of an express statutory provision prohibiting a party from
challenging an agency action on a ground that the party did not argue before
the agency, courts use a complex test in determining whether to permit such
challenges. Sometimes courts impose an issue exhaustion requirement that
is not statutorily imposed; indeed, the rule of issue exhaustion is sometimes
said to be the general rule. But, in at least some cases, courts decline to impose
an issue exhaustion requirement where the applicable statute does not contain
one.
The Supreme Court considered the question at length in Sims v. Apfel.230
The Court observed that issue exhaustion requirements “are largely creatures

229. A typical wording for such a prohibition is: “No objection to the order of the Commission
shall be considered by the court unless such objection shall have been urged before the Commission or unless there were reasonable grounds for failure so to do.” 15 U.S.C. § 80a-42(a).
For a few other examples (from among many that might be chosen), see 16 U.S.C. § 825l(b);
27 U.S.C. § 204(h); 29 U.S.C. § 3247(a)(3); 42 U.S.C. § 1320a-7a(e).
230. 530 U.S. 103 (2000). The case concerned whether a claimant for Social Security benefits
could seek judicial review of the denial of such benefits on the basis of an argument that the
claimant did not make before the Appeals Council of the Department of Health and Human
Services. Id. at 104–06.
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of statute.”231 It also noted, however, that it had sometimes required issue
exhaustion in the absence of a statutory issue exhaustion provision.232 Indeed,
the Court said that “courts require administrative issue exhaustion ‘as a general
rule’”233 for the same reason that appellate courts normally decline to review a
district court’s judgments on the basis of arguments that a party did not present
to the district court: litigation operates more efficiently if parties are required
to bring all their issues forward in the initial proceedings.
The Court determined, however, that “the desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the
analogy to normal adversarial litigation applies in a particular administrative
proceeding.”234 Social Security proceedings, a plurality of the Court held, are
not sufficiently analogous to civil litigation to justify the imposition of an
issue exhaustion requirement, because they are “inquisitorial rather than
adversarial.”235 Both the administrative law judge (ALJ) who initially conducts
an evidentiary hearing regarding a claim for benefits and the Appeals Council
that reviews ALJ decisions regard themselves, not the claimant, as having the
principal responsibility for identifying and developing the issues. Accordingly,
judicial imposition of an issue exhaustion requirement would be inappropriate
for such proceedings. The Supreme Court recently applied the principle of Sims
in determining that unsuccessful applicants for Social Security disability benefits could challenge the agency proceedings on the ground that the agency’s
ALJs were unconstitutionally appointed even though the applicants had not
raised this issue in the agency proceedings.236
In light of Sims, it is clear that if Congress wants to ensure that issue
exhaustion is required with regard to a particular kind of agency action, it
should say so in a specific judicial review statute. In many cases, one might
predict with a fair degree of confidence that courts would require issue exhaus-

231. Id. at 107.
232. Id. at 108.
233. Id. at 109 (quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36–37
(1952)).
234. Id.
235. Id. at 111.
236. Carr v. Saul, 141 S. Ct. 1352, 1359–62 (2021).
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tion even in the absence of such a statutory requirement, but a statutory issue
exhaustion provision would settle the matter.
2. Are Issue Exhaustion Requirements Desirable?
As the foregoing discussion suggests, the desirability of an issue exhaustion
requirement depends on the characteristics of the agency proceeding of which
review is sought. The more the agency proceeding resembles civil litigation, the
more appropriate an issue exhaustion requirement will be. If agency proceedings are adversarial proceedings in which parties are normally represented by
counsel and are expected to develop the issues for decision, an issue exhaustion
requirement makes sense. Such a requirement incentivizes the parties to bring
forward all their issues in the initial proceeding and to alert the initial decisionmaker to any potential errors or objections, which in turn maximizes the
probability that the initial decision will be correct. Allowing the parties to raise
issues on judicial review that they did not raise before the agency increases the
probability that the reviewing authority will overturn the initial decision and
require costly additional proceedings. In some circumstances, the absence of
an issue exhaustion requirement might even incentivize “sandbagging”: a party
that is aware of an error in an agency proceeding that cuts against it might
deliberately avoid bringing the error to the agency’s attention, in the hope that
either the party might prevail anyway or, if the party loses, the party could get
the agency’s final ruling vacated on judicial review (because there would be no
barrier to raising the issue on review even though the party had not raised it
within the agency). Such deliberate sandbagging would promote inefficiency
and added cost and, therefore, seems clearly undesirable.
As the Supreme Court recognized in Sims, however, the more an agency
proceeding deviates from the adversarial, civil litigation model, the less
appropriate it may be to require issue exhaustion as a prerequisite for judicial
review.237 When the agency itself has the principal responsibility for raising
issues and building a record, issue exhaustion is less appropriate.
It might seem from the foregoing discussion that issue exhaustion should
apply only to agency adjudicatory proceedings and not to rulemaking proceedings. Rulemaking proceedings are quite different from adversarial, civil

237. See Sims, 530 U.S. at 110.
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litigation proceedings. Rulemaking proceedings are not adversarial; indeed,
they do not even involve “parties” in the same way as litigation proceedings.
A party that has occasion to challenge a rule after the rule is issued may not
even have participated in the rulemaking. Nonetheless, courts have sometimes
imposed an issue exhaustion requirement on parties seeking judicial review
of agency rulemaking, although they have suggested that such a requirement
applies only to affirmative challenges to rules and would not limit the issues
that may be raised as a defense when a rule is enforced.238
ACUS has previously considered issue exhaustion’s application to judicial
review of rules, issuing a Statement identifying factors that courts should
consider when they determine whether issue exhaustion applies to a pre-enforcement challenge to an agency rule.239 But the Statement is addressed to how
courts should consider issue exhaustion in the absence of statutory guidance,
and the factors appropriate to such judicial consideration of the matter are
not necessarily the same factors that should guide Congress in determining
whether to impose an issue exhaustion requirement by statute.240
The application of an issue exhaustion requirement to judicial review of
rulemaking proceedings can be justified by principles such as that of conducting review of an agency action on the basis of the record that was before the
agency.241 However, uncritical application of an issue exhaustion requirement
to the rulemaking context may lead to perverse incentives, as for example by
incentivizing “shotgun” comments to be filed by parties seeking to preserve

238. See, e.g., Koretoff v. Vilsack, 707 F.3d 394 (D.C. Cir. 2013). In that case, the D.C. Circuit held
that almond producers who challenged the lawfulness of an Almond Marketing Order could
not argue that in issuing the order, the Department of Agriculture had failed to determine, as
required by statute, that the order was “the only practical means of advancing the interests of the
producers,” because that argument had not been raised in the notice-and-comment proceedings
through which the order was issued. Id. at 397–99 (quoting 7 U.S.C. § 608c(9)). The Court noted,
however, that its holding did not mean that this challenge to the order could not be raised as a
defense in an enforcement proceeding. Id. at 399.
239. Admin. Conf. of the U.S., Statement #19, Issue Exhaustion in Pre-Enforcement Judicial
Review of Administrative Rulemaking, 80 Fed. Reg. 60611 (Oct. 7, 2015).
240. Some scholars have taken an “essentially sympathetic view” of issue exhaustion requirements in judicial review of rulemaking. See, e.g., Ronald M. Levin, Making Sense of Issue
Exhaustion in Rulemaking, 70 Admin. L. Rev. 177, 180 (2018). Others are more skeptical. See,
e.g., Jeffrey S. Lubbers, Fail to Comment at Your Own Risk: Does Issue Exhaustion Have a Place
in Judicial Review of Rules?, 70 Admin. L. Rev. 109 (2018).
241. See Levin, supra note 240, at 202.
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every possible basis for judicial review.242 Also, given that no one is required to
participate in rulemaking proceedings, issue exhaustion requirements might
be considered unfair if applied to parties that did not participate in rulemaking
proceedings at all.243
In light of the conflicting scholarly arguments on this topic, which
previously led ACUS to issue a fairly cautious Statement rather than a recommendation, this Sourcebook simply recommends that Congress should
be aware of this issue, should consider whether it desires to impose an issue
exhaustion requirement when fashioning a judicial review statute, and should
be aware that if it says nothing, courts will resolve the question of issue exhaustion on the basis of judicial doctrines.
3. The Wording of Issue Exhaustion Requirement Provisions
When it does impose issue exhaustion requirements, Congress has used inconsistent wording.244 At least one court has commented on the “senselessness of
the[] differences in language” in the different provisions by which Congress

242. See Lubbers, supra note 240, at 137.
243. Id. at 156–59. On the other hand, it might seem odd, and create different perverse incentives, if parties that did not participate in a rulemaking could thereby gain an advantage in
judicial review over parties that did. Id.; see also Levin, supra note 240, at 202.
244. Some issue exhaustion statutes provide simply that “[n]o objection to the order of the
[agency] shall be considered by the court unless such objection shall have been urged before
the [agency].” E.g., 15 U.S.C. §§ 77i(a), 715d(c); see also 15 U.S.C. § 1710(a) (providing “[n]o
objection to an order or determination” shall be considered in the same instance); 25 U.S.C.
§ 4161(d)(2) (stating no objection to the “action” shall be considered). Others state that “[n]o
objection to the order of the [agency] shall be considered by the court unless such objection
shall have been urged before the [agency] or unless there were reasonable grounds for failure
so to do.” E.g., 15 U.S.C. §§ 80a-42(a), 80b-13(a); 21 U.S.C. § 355(h). Still other statutes provide
that “[n]o objection that has not been urged before the [agency] shall be considered by the
court, unless the failure or neglect to urge such objection shall be excused for good cause
shown.” E.g., 30 U.S.C. § 811. And others provide that “[n]o objection that has not been urged
before the [agency] shall be considered by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary circumstances.” E.g., 29 U.S.C. § 660(a).
Yet another formulation provides that “[n]o objection to the order of the [agency] shall be
considered by the court unless the objection was specifically urged, in a timely manner, before
the [agency].” E.g., 29 U.S.C. § 3247(a)(3).
These statutes give rise to imponderable questions, such as whether there is a distinction
between “reasonable grounds” for failure to have raised an argument and “good cause” for
such a failure; when such cause or grounds would rise to the level of “extraordinary circumstances”; what it means for an objection to be “specifically urged” as opposed to merely
“urged”; and what, if anything, justifies these fine distinctions among issue exhaustion
requirements.
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has imposed an issue exhaustion requirement and inferred that Congress
had “fail[ed] to give careful attention to the nuances of language that might,
in another context, connote differences in intended meaning.”245 That court
concluded that Congress must have intended simply to codify the judicially
developed doctrine of issue exhaustion.246
This decision calls attention to the danger that may arise from apparently
trivial variations in the forms of words Congress uses to express similar concepts
in different statutes. Courts usually “presume differences in language . . . convey
differences in meaning,”247 so Congress should take care not to use language
that might imply a difference of meaning that it does not intend.
RECOMMENDATION:
In passing a specific judicial review statute, Congress should consider
whether it desires to impose an issue exhaustion requirement. Congress
should understand that if it does not expressly state in a specific judicial
review statute whether issue exhaustion is or is not required, courts will
make that decision on their own. Congress should be aware that issue
exhaustion is most appropriate for agency proceedings that resemble adversary civil litigation proceedings, but also that it may apply to rulemaking
proceedings. Congress may wish to consider ACUS Statement #19 for
guidance in deciding whether to impose issue exhaustion requirements
in review of rulemaking proceedings. Congress should also use consistent
wording when it imposes an issue exhaustion requirement.

I. Provisions Relating to the Record
The APA provides that, in conducting judicial review, “the court shall review
the whole record or those parts of it cited by a party.”248 The APA does not
define what constitutes “the whole record,” nor does it expressly prohibit courts

245. Wash. Ass’n for Television & Child. v. FCC, 712 F.2d 677, 682 n.6 (D.C. Cir. 1983).
246. Id. at 681–82.
247. Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2071 (2018) (quoting Henson v. Santander
Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017)).
248. 5 U.S.C. § 706.
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from considering materials that are not part of the agency record. It also does
not specify how the court shall receive the record from the agency.249 Some further detail, however, is given in 28 U.S.C. § 2112, which provides that the federal
rules of procedure developed in accordance with the Rules Enabling Act may
provide for the time and manner of filing the record in proceedings for judicial
review;250 that the rules may permit agencies to file a certified list of the materials comprising the record rather than the record itself;251 and that the record
shall consist of “the order sought to be reviewed or enforced, the findings or
report upon which it is based, and the pleadings, evidence, and proceedings
before the agency, board, commission, or officer concerned,” or such portions
thereof as are specified by the rules, the parties, or the court.252 With respect
to judicial review of informal rulemaking, ACUS has also recommended best
practices for compiling and certifying the administrative record.253
Numerous special judicial review statutes contain some provision relating
to the record that the reviewing court shall consider. By far the most common
is a provision requiring that when the agency receives notice that a party has
sought judicial review of an action taken by the agency, the agency shall file
the record in the court in which judicial review has been sought “as provided
in section 2112 of Title 28.”254 Inasmuch as § 2112 applies of its own force to
“all proceedings instituted in the courts of appeals to . . . review or enforce
orders of administrative agencies, boards, commissions, and officers,” and
requires in such cases that the record “shall be certified and filed in or held
for and transmitted to the court of appeals” by the agency “within the time
and in the manner prescribed” by the rules adopted in accordance with the
Rules Enabling Act, a provision in a specific judicial review statute instructing

249. See, e.g., Aram A. Gavoor & Steven A. Platt, Administrative Records and the Courts, 67
Kan. L. Rev. 1 (2018) (arguing that courts may order a record completed if an agency does
not submit the whole record to the court, but that courts cannot order supplementation of the
record).
250. 28 U.S.C. § 2112(a).
251. Id.
252. Id. § 2112(b).
253. Admin. Conf. of the U.S., Recommendation 2013-4, The Administrative Record in Informal Rulemaking, ¶¶ 3, 9, 78 Fed. Reg. 41358, 41360, 41361 (July 10, 2013).
254. Many statutes use this formulation. See, e.g., 15 U.S.C. § 77i(a); 16 U.S.C. § 3142(g)(2);
21 U.S.C. § 360kk(d)(4); 42 U.S.C. § 263a(k)(1).
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an agency to file the record in accordance with § 2112 in a case in a court of
appeals is redundant.255
There is no comparable statute generally providing for an agency to file
the record of its proceedings in a district court in which review of the agency’s
final action is sought, so statutory provision for such filing is not redundant.
Some specific judicial review statutes instruct agencies to file the record “as
provided in section 2112” even though the review is to take place in a district
court.256 Strictly speaking, one might say that it is impossible to file a record
in district court “as provided in section 2112,” as § 2112 applies only to cases
in courts of appeals and requires the record to be filed in or held for a court of
appeals, but of course the filing can be accomplished in the manner provided
in § 2112 even though a case is in a district court.
As just noted, § 2112 requires the agency to file the record “within
the time” prescribed by the rules adopted pursuant to the Rules Enabling
Act. 257 Federal Rule of Appellate Procedure 17 gives an agency 40 days
to file the record after being served with a petition for review, unless the
statute authorizing review provides otherwise. Numerous specific judicial
review provisions require the agency to file the record “promptly.”258 Such a
requirement perhaps suggests that the agency should file the record in less
time than 40 days, in which case it would not simply be redundant of what is
already stated in 28 U.S.C. § 2112(a), but it seems unlikely that a requirement
of “prompt” filing makes much practical difference as to when an agency
actually files the record.
The other provision relating to the record most commonly found in specific judicial review statutes is one that allows the court to remand the case
for the purpose of gathering new evidence. A common formulation of such
a provision is:
The findings of fact by the [agency], if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may
remand the case to [the agency] to take further evidence, and [the

255. 28 U.S.C. § 2112(a).
256. E.g., 16 U.S.C. §§ 1858(b), 2437(c), 3142(g)(2), 3373(c), 5507(d); 29 U.S.C. § 160(e);
30 U.S.C. § 1462(b).
257. 28 U.S.C. § 2112(a).
258. E.g., 7 U.S.C. § 1446(d)(5)(C); 16 U.S.C. § 1858(b); 42 U.S.C. § 9152(c)(2).
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agency] may thereupon make new or modified findings of fact and
may modify [its] previous action, and shall certify to the court [the
record] of the further proceedings. Such new or modified findings of
fact shall likewise be conclusive if supported by substantial evidence.259
These provisions are perhaps modeled on 28 U.S.C. § 2347(c), a portion
of the Hobbs Act that sets forth this rule for review proceedings covered by
that Act.
RECOMMENDATION:
When providing for judicial review of agency action in a court of appeals,
Congress should be aware that it is not necessary to specify that the agency
shall file the record of its proceeding in the reviewing court, as such filing
is universally required by 28 U.S.C. § 2112 and Federal Rule of Appellate
Procedure 17.

J. Provisions Prohibiting Review in Enforcement
Proceedings
The APA provides that “[e]xcept to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject
to judicial review in civil or criminal proceedings for judicial enforcement.”260
Accordingly, when no statute says otherwise, a party that disagrees with an
agency action may choose not to institute an affirmative judicial challenge to
the action. The party may instead wait until it becomes a respondent or defendant in some action brought by the agency, by another government agency, or
perhaps even by a private party, in which the agency action is implicated, and it

259. Many statutes use this formulation or a variation thereof. See, e.g., 19 U.S.C. § 2395(b);
20 U.S.C. § 1070c-3(b)(2); 42 U.S.C. § 504(b) (all using the formulation above); 7 U.S.C. § 194(f);
7 U.S.C. § 1600; 15 U.S.C. § 687a(e) (all allowing a similar procedure if “the court determines that the just and proper disposition of the case requires the taking of additional
evidence”); 12 U.S.C. § 1701q-1(e)(2); 15 U.S.C. § 77i(a); 21 U.S.C. § 360kk(d)(2) (all allowing
a remand for the taking of further evidence if any party demonstrates “to the satisfaction of
the court” that the additional evidence is material and that there were reasonable grounds
for the failure to present such evidence before the agency).
260. 5 U.S.C. § 703.
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may raise the invalidity of the agency action as a defense. This strategy is most
commonly associated with challenges to agency rules,261 but it is sometimes
also used with respect to agency adjudicatory decisions.262
Congress may, however, block this strategy by requiring that challenges
to an agency action be brought in a specified way and forbidding them in
the enforcement context. If Congress provides a “prior” and “adequate”
opportunity for judicial review of agency action and makes that opportunity
“exclusive,” then the APA’s provision allowing parties to raise a challenge to an
agency action defensively in an enforcement context does not apply.263
Numerous specific judicial review statutes contain such provisions. In
cases when an agency, through individualized adjudication, imposes a fine
or other civil penalty on a private party or orders that party to take specified
action, a statute might authorize the private party to seek judicial review of the
agency decision within a certain period and also provide that if no such action
is brought within that period (or if such an action is brought but is unsuccessful) and the government then brings an action to collect the fine or penalty
or enforce the order, the fine, penalty, or order shall not be subject to judicial
review in that action.264 Similarly, with regard to agency regulations, a statute
may provide that judicial challenges to regulations must be brought within a
specified time period and that challenges to a regulation that might have been
brought within that time may not be raised in an enforcement proceeding.265
At least three issues arise with regard to such statutory provisions. First,
Congress needs to be aware of the APA rule that permits parties to raise
challenges to an agency action defensively in the context of enforcement
proceedings.266 Congress must understand that this default rule will apply if

261. See, e.g., Guide, supra note 1, at 13–14; Blackletter Statement, supra note 1, at 55.
262. See, for example, United States v. Menendez, 48 F.3d 1401 (5th Cir. 1995), in which a
private party was assessed a civil penalty in an agency proceeding, did not pay it, and then
challenged the validity of the agency proceeding defensively when the United States instituted
a proceeding to collect the penalty.
263. See 5 U.S.C. § 703.
264. E.g., 12 U.S.C. § 4636; 20 U.S.C. § 6083(f)(5), (6); 21 U.S.C. § 399d(b)(5), (6); 29 U.S.C. § 660(a),
(b); 33 U.S.C. § 1369(b)(1), (2).
265. E.g., 33 U.S.C. § 2717(a); 42 U.S.C. § 300j-7(a); 42 U.S.C. § 4915(a).
266. 5 U.S.C. § 703.
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it makes no contrary provision in a specific judicial review statute applicable
to the matter at hand.
Second, if Congress desires to provide for a different rule with regard
to a particular kind of agency action, it should take care to do so clearly. The
numerous statutes alluded to above, in which Congress has prohibited judicial
review of agency orders in the enforcement context, show that Congress knows
how to prohibit such review when it wants to. As a result, anything less than
a clear prohibition of such review may not be effective.
This point was highlighted in the recent Supreme Court case of PDR
Network, LLC v. Carlton & Harris Chiropractic.267 In that case, one private
party sued another for allegedly violating a statutory prohibition on sending
“unsolicited advertisements” by fax. The case implicated the validity of an FCC
interpretation of the statute, under which a fax might constitute an “unsolicited
advertisement” even if it offered a product or service at no cost. Because the
Hobbs Act gives courts of appeals “exclusive jurisdiction to enjoin, set aside,
suspend (in whole or in part), or to determine the validity of” certain FCC
orders, the respondent asserted that the district court in which it sued was
bound to accept the FCC’s interpretation of the statutory prohibition.268
The Supreme Court remanded the case for further proceedings on certain preliminary questions, as a result of which the Court did not pass on the
ability of the district court to review the FCC’s interpretation in the context
of a private action for enforcement.269 Justice Kavanaugh, however, in a concurring opinion joined by Justices Thomas, Alito, and Gorsuch, examined
the question in detail.270 Justice Kavanaugh noted that the Hobbs Act, which
applied to the FCC order at issue, permitted interested parties to seek review of
the order by filing a pre-enforcement, facial challenge to the rule in a court of
appeals within 60 days.271 Moreover, the Hobbs Act provides that “[t]he court
of appeals . . . has exclusive jurisdiction to enjoin, set aside, suspend (in whole
or in part), or to determine the validity of” the regulation at issue.272 None-

267. 139 S. Ct. 2051 (2019).
268. Id. at 2054–56 (citing 28 U.S.C. § 2342(1)); see also supra Part IV.B.
269. Id. at 2056.
270. Id. at 2057 (Kavanaugh, J., concurring in the judgment).
271. Id. at 2058–59.
272. 28 U.S.C. § 2342 (2019) (emphasis added).
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theless, Justice Kavanaugh concluded that the Hobbs Act did not displace a
party’s ability to bring an as-applied challenge to the FCC order in the context
of an enforcement proceeding. Justice Kavanaugh noted that “[w]hen Congress
intends to eliminate as-applied judicial review of agency interpretation of statutes in enforcement actions, Congress can, must, and does speak clearly.”273
The Hobbs Act, he concluded, gives courts of appeals exclusive jurisdiction
to consider pre-enforcement, facial challenges to agency actions to which it
applies, but it does not clearly negate (and therefore does not negate) a party’s
ability to raise an as-applied challenge to an agency action in an enforcement
proceeding.274 Although Justice Kavanaugh’s opinion did not attract a majority
of the Supreme Court, it did get four votes, which supports the view that Congress would be well-advised to speak clearly when it desires to prohibit review
of agency action in the context of enforcement proceedings.
Finally, Congress should be aware that in some cases, even when Congress
does clearly provide by statute that review is not to be had in an enforcement
proceeding with regard to any issue that might have been raised in an earlier
proceeding, courts may still be reluctant to hold that review is barred. This
issue arises particularly with regard to review of agency rules. If Congress
provides that review of a rule must be sought within a specified time limit and
also that review may not be had in enforcement proceedings with regard to an
issue that could have been reviewed previously, it would seem to follow that
once the time limit is passed, the rule is immune from challenge even in the
context of an enforcement proceeding. However, while the Supreme Court has
approved such a scheme as constitutional,275 it is evident that such a scheme has
the potential to lead to a harsh result, as it could mean that a party that might
not even have been aware of a rule at the time of its promulgation might later
be penalized under the rule (perhaps even criminally) and have no right to
challenge its lawfulness. Perhaps for this reason, in cases of this kind, courts

273. 139 S. Ct. at 2062.
274. Id. at 2062–66.
275. See Yakus v. United States, 321 U.S. 414 (1944).
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sometimes avoid the problem by giving a narrow construction to the statutory
provision that might bar review.276
RECOMMENDATION:
Congress should be aware that if a special judicial review statute does not
clearly negate the ability of parties to challenge agency action in the context
of an enforcement proceeding, parties will have that ability. When Congress
desires that parties not be permitted to challenge the validity of an agency
action as a defense in an enforcement proceeding, Congress should say so
clearly.

K. Other Provisions Prohibiting Judicial Review
The previous section concerned provisions that prohibit judicial review of agency
actions in the context of enforcement actions, having provided other opportunity
for such review. In addition, however, some statutes entirely prohibit judicial
review of agency action. This possibility is contemplated in § 701 of the APA,
which provides that the whole judicial review chapter of the APA applies “except
to the extent that . . . statutes preclude judicial review.”277
Wholesale preclusion of judicial review is unusual and judicially disfavored. Courts presume that agency action is subject to judicial review.278 Only

276. E.g., Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978) (determining that a
statute, which provided a time-limited mechanism by which to seek judicial review of an EPA
“emission standard” and also provided that no review could be had in a subsequent enforcement proceeding of any action which could have been review by that mechanism, did not
apply because the EPA action at issue was not an “emission standard”); see Levin, supra note
129, at 2225–29.
277. 5 U.S.C. § 701(a)(1). Section 701 also excepts from the application of Chapter 7 cases when
“agency action is committed to agency discretion by law.” Id. § 701(a)(2). However, statutes
involving this exception would typically not refer specifically to judicial review. Rather, they
would indicate that a matter is committed to agency discretion by granting the agency authority in such broad terms that there would be no law for a reviewing court to apply. See, for
example, Webster v. Doe, 486 U.S. 592 (1988) (quoting 50 U.S.C. § 403(c)), in which a statute
precluded review by authorizing the Director of the CIA to terminate employees “whenever
he shall deem such termination necessary or advisable in the interests of the United States.”
Because such statutes make no reference to judicial review, they would not be captured by the
searches conducted to create the Statutory Analysis Spreadsheet. Accordingly, cases involving
this exception are beyond the scope of this Sourcebook.
278. E.g., Abbott Lab’ys v. Gardner, 387 U.S. 136, 141 (1967).
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“clear and convincing evidence” of congressional intent to preclude review will
overcome this presumption.279
Preclusion of review, which is unusual and disfavored, must be distinguished from channeling of review, which is commonplace and usually
uncontroversial. For Congress to preclude all judicial review of an agency
action raises judicial hackles, but for Congress to provide for judicial review
while requiring the party seeking it to seek it in a particular forum and in a
particular way is routine.
Thus, it is common for specific judicial review provisions to state that
review of the kind of agency action that is involved may not be obtained
except as provided in the statute.280 Such channeling of review should hardly
be considered preclusion of review at all. Indeed, inasmuch as § 703 of the
APA provides that “[t]he form of proceeding for judicial review is the special
statutory review proceeding relevant to the subject matter in a court specified
by statute” and permits review to be sought by “any applicable form of legal
action” only “in the absence or inadequacy” of a special statutory review proceeding, Congress’s provision of a specific judicial review statute normally
precludes other forms of review whether the specific statute says so expressly
or not.281
Still, statutes do occasionally appear to bar all judicial review of certain
agency actions. This kind of preclusion is, as noted above, judicially disfavored.
The courts have long resisted fully specifying the degree to which the Constitution might limit Congress’s ability to preclude review of agency action.282

279. Id.
280. E.g., 7 U.S.C. § 136w-8(g)(1); 8 U.S.C. § 1160(e)(1); 12 U.S.C. § 4623(d).
281. 5 U.S.C. § 703; see, e.g., Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1065 (6th
Cir. 2014) (“[W]here Congress establishes a special statutory review procedure for administrative action, that procedure is generally the exclusive means of review for those actions.”
(quoting Greater Detroit Res. Recovery Auth. v. EPA, 916 F.2d 317, 321 (6th Cir. 1990))); Gen.
Fin. Corp. v. FTC, 700 F.2d 366, 368 (7th Cir. 1983) (“You may not bypass the specific method
that Congress has provided for reviewing adverse agency action simply by suing the agency
in federal district court under 1331 or 1337; the specific statutory method, if adequate, is
exclusive.”).
282. See Guide, supra note 1, at 16–18.
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Rather, applying the principle of constitutional avoidance,283 a court will carefully parse the language of a statute that purports to preclude judicial review
altogether in order to see exactly what agency actions it shields from review.
On close examination, the statutory language may turn out to be more limited
than it might appear to be at first glance, particularly when the language is
considered through the lens of constitutional avoidance as well as that of the
presumption favoring judicial review.284

L. The Standard of Review
Probably the most important general issue in any appellate proceeding is the
standard of review. The standard of review determines whether the appellate
tribunal gives plenary consideration to an issue and ultimately renders the
decision on that issue that it thinks is correct, or whether the tribunal shows
deference to the decision on that issue by the initial decisionmaker. In the
administrative law context, the initial decisionmaker is the administrative
agency that took the action under review.
In judicial review of administrative action, the standard of review is generally deferential. First, courts generally show deference to agencies regarding
findings of fact.285 Just as an appellate court shows deference to factual findings

283. This principle provides that where a statute is susceptible to alternative constructions,
one of which is constitutional and one of which is not, the court will prefer the constitutional
construction. Indeed, a court will sometimes prefer a clearly constitutional construction even
where the alternative construction is not clearly unconstitutional, but raises a serious question
as to its constitutionality. See, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988).
284. See, e.g., Johnson v. Robison, 415 U.S. 361 (1974). In that case, the Supreme Court narrowly construed 38 U.S.C. § 211 (later amended and renumbered as § 511), which then barred
review of “the decisions of the Administrator [of Veterans Affairs] on any question of law
or fact under any law administered by the Veterans’ Administration providing benefits for
veterans.” Id. at 367 (quoting 38 U.S.C. § 211(a)). The Court held that this language did not bar
review of a constitutional challenge to a veterans’ benefits statute, as the constitutionality of
the statute was not a question of law or fact under the statute. Id. 367–74.
285. See, e.g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (holding that a court
should approve an administrative factual finding that is supported by “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion” (quoting Consol.
Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938))).
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by trial courts,286 a reviewing court shows deference to factual findings by
administrative agencies. In a close case, a reviewing court will affirm a factual
finding whether or not the court would have made the same finding had it been
called upon to determine the facts initially.
Courts also show deference when reviewing agency decisions on questions
of policy or other matters requiring the exercise of agency discretion. The APA
empowers a court to overturn an agency action that is arbitrary, capricious,
or an abuse of discretion,287 but the scope of review under this standard “is
narrow and a court is not to substitute its judgment for that of the agency.”288
When an agency’s decision requires the agency to make predictive, scientific
judgments within its special area of expertise, a reviewing court should be
especially deferential.289
Finally, courts also, under the Chevron doctrine, show deference to agency
determinations on some questions of law.290 Under Chevron, when a court
reviews an agency’s interpretation of a statute that the agency administers, the
court first determines whether the statute clearly addresses the precise question
at issue.291 If so, both the agency and the court are bound by Congress’s clear
command.292 If, however, the governing statute is silent or ambiguous as to the
question at issue, the court determines only whether the agency’s interpretation of the statute is a permissible one.293 The court must uphold a reasonable
agency construction of a statute the agency administers even if the court does

286. Fed. R. Civ. P. 52(a)(6) (providing that federal appellate courts should set aside facts
found by federal district courts only if they are “clearly erroneous”). The standard of review
applied by reviewing courts to facts found by administrative agencies is sometimes said to
be “somewhat less intense” than the standard applied by appellate courts to facts found by
trial courts. E.g., Blackletter Statement, supra note 1, at 38. Whether or not this is true,
the main point is that judicial review of agency factfinding is deferential; that is far more
important than the precise degree of deference shown. Cf. United States v. McKinney, 919 F.2d
405, 422–23 (7th Cir. 1990) (Posner, J., concurring) (suggesting that reviewing authorities can
really distinguish only two standards of review, de novo and deferential, and that efforts to
further distinguish among deferential standards of review are pointless).
287. 5 U.S.C. § 706(2)(A).
288. Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1989).
289. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983).
290. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). See also supra
note 68 and accompanying text (describing Auer deference).
291. Chevron, 467 U.S. at 842–43.
292. Id.
293. Id. at 843.
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not regard it as the best construction of the statute.294 Although this doctrine
has come under attack in recent years295 and might be the subject of judicial
or legislative change,296 it remains the law today.
If Congress says nothing about the standard of review applicable to an
agency action, review will be governed by 5 U.S.C. § 706, which has been interpreted to provide for the kind of deferential review noted above. Numerous
specific judicial review statutes do, however, contain a provision describing the
standard of review that should apply to review of a particular kind of agency
action. Surveying these provisions reveals that Congress takes a variety of
approaches to specifying the standard of review. Some of the specific judicial review provisions contain a provision regarding the standard of review
that is clearly redundant; others make a definite change in the standard of
review, while still others fall into a questionable middle area, within which
it appears that Congress may have attempted to alter the standard of review,
but expressed itself with insufficient clarity, with the result that in at least
some cases its efforts are negated by judicial construction. A survey of these
provisions follows.
1. Redundant Provisions
The reader who has reached this point will not be surprised to learn that many
specific judicial review provisions do no more than simply and redundantly
state that § 706 of the APA shall apply to judicial review.297 Of course, § 706
would apply even if the specific judicial review statute were silent as to the stan-

294. Id. at 843 n.11.
295. See Michigan v. EPA, 576 U.S. 743, 760–64 (2015) (Thomas, J., concurring) (arguing that
“Chevron deference raises serious separation-of-powers questions”); Gutierrez-Brizuela v.
Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016) (Gorsuch, J., concurring) (arguing that Chevron allows “executive bureaucracies to swallow huge amounts of core judicial and legislative
power”); Hamburger, supra note 70 (providing an academic critique of Chevron). For an
academic defense of Chevron, see Siegel, supra note 71.
296. Congress has considered overruling Chevron deference statutorily by passing a bill called
the “Separation of Powers Restoration Act,” which passed the House of Representatives more
than once but has not passed the Senate. H.R. 4768, 114th Cong. (2016); S. 909, 116th Cong.
(2019). See Siegel, supra note 71, at 939–40.
297. See, e.g., 7 U.S.C. §§ 252(d)(2); 12 U.S.C. § 1723i(d)(3); 15 U.S.C. § 78u-6(f); 16 U.S.C. § 5507(d);
19 U.S.C. § 1337(c); 42 U.S.C. § 3545(h)(3).
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dard of review. Accordingly, these provisions accomplish nothing, although
they also cause no particular harm.
Other provisions give the appearance of significance by taking the
trouble to exclude the operation of some portions of § 706. However, on close
examination some of these provisions do no more than exclude the operation
of portions of § 706 that would, by their own terms, not apply anyway. This
occurs primarily because some specific judicial review provisions state that
§ 706(2)(E) or § 706(2)(F) shall not apply, even though, by their own terms,
§ 706(2)(E) applies only to formal proceedings under §§ 556 and 557 of the
APA or to cases “otherwise reviewed on the record of an agency hearing
provided by statute,”298 and § 706(2)(F) applies only “to the extent that the
facts are subject to trial de novo by the reviewing court,” which is applicable
only in rare cases. Accordingly, excluding the operation of these provisions
in statutes providing for review of many typical agency actions, such as the
promulgation of regulations made through the usual, informal notice-andcomment process provided in § 553 of the APA, is redundant, though it is
sometimes done.299
2. Effective Provisions
Some specific judicial provisions make a definite change in the standard of
review.
a) De Novo Review
Most notably, some statutes provide that judicial review of an agency action
shall take the form of a de novo trial. For example, the Perishable Agricultural
Commodities Act, which prohibits those who deal in perishable agricultural
commodities from refusing interstate shipments of such commodities without
reasonable cause,300 authorizes the Secretary of Agriculture to order those who
violate the act to pay reparations to injured parties.301 But it also allows those

298. It is rare for a court to determine that this latter part of the section applies. For a rare
instance in which it did apply, see In re Gartside, 203 F.3d 1305 (Fed. Cir. 2000).
299. E.g., 15 U.S.C. § 57a(e)(3); 16 U.S.C. § 3636(c); 45 U.S.C. § 915(b)(2).
300. 7 U.S.C. § 499b.
301. Id. § 499g.
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who become subject to a reparations order to seek judicial review in district
court, and it provides that the suit for judicial review “shall be a trial de novo
and shall proceed in all respects like other civil suits for damages, except that
the findings of fact and order or orders of the Secretary shall be prima-facie
evidence of the facts therein stated.”302 Accordingly, on review of a reparations
order under this statute, the district court, with the exception stated in the
statute, conducts a new trial “of the entire controversy, including the hearing
of evidence as though no previous action had been taken.”303
Other agency actions subject to de novo judicial review include: determinations by the Secretary of Agriculture that stores have violated the Food
Stamp Act by illegally trafficking in food stamps;304 denials of naturalization;305
approvals of bank mergers alleged to violate the antitrust laws;306 refusals to
initiate rulemaking proceedings under the Toxic Substances Control Act;307
and imposition of civil penalties for certain violations of the Controlled Substance Act.308
In cases subject to de novo review, the reviewing court makes an independent determination of the issues presented. Although one might argue
that a statute calling for “review” inherently contemplates some deference to
the initial agency decision, the key term in the phrase “de novo review” is “de
novo” rather than “review.”309

302. Id.
303. Tom Lange Co. v. A. Gagliano Co., 859 F. Supp. 356, 358 (E.D. Wis. 1994) (quoting Spano
v. W. Fruit Growers, Inc., 83 F.2d 150, 151 (10th Cir. 1936)), rev’d on other grounds, 61 F.3d
1305 (7th Cir. 1995).
304. 7 U.S.C. § 2023(a)(15). De novo review, however, extends only to the Secretary’s determination that a violation of the statute occurred. The Secretary’s choice of punishment is subject
to review under a more deferential standard such as abuse of discretion. E.g., Affum v. United
States, 566 F.3d 1150 (D.C. Cir. 2009).
305. 8 U.S.C. § 1421(c).
306. 12 U.S.C. § 1828(c)(7)(A).
307. 15 U.S.C. § 2620(b)(4)(B).
308. 21 U.S.C. § 844a(g).
309. United States v. First City Nat’l Bank of Hous., 386 U.S. 361, 368 (1967).
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b) Other Effective Variations on the Standard of Review
In addition to statutes that provide for de novo review, some specific judicial
review statutes provide for some other variation on the standard of review.
Such statutes may provide for less stringent (i.e., more agency-favoring) review
than would otherwise be available, or the reverse. A few examples:
The Immigration and Nationality Act, which provides for judicial review
of final orders directing the removal of an alien from the country, provides
that in cases of removal of aliens who have committed specified crimes, the
reviewing court may review only “constitutional claims or questions of law.”310
This restriction is not quite as strict as it appears at first, as it permits courts to
determine whether the agency correctly applied a legal standard to undisputed
or established facts.311 Still, it precludes review of factual challenges to the final
order of removal, which would otherwise be available.312
The Alaska Natural Gas Transportation Act (ANGTA) permits review of
certain actions of the Federal Energy Regulatory Commission only to determine whether they “will deny rights under the Constitution of the United
States,” or are “in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right.”313 Cases have confirmed that under this statute courts
may not review covered agency actions for “reasonableness or substantial
support on the record.”314

310. 8 U.S.C. § 1252(a)(2)(D).
311. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020).
312. Nasrallah v. Barr, 140 S. Ct. 1683, 1688 (2020).
313. 15 U.S.C. § 719h(b)(2).
314. Earth Res. Co. of Alaska v. FERC, 617 F.2d 775, 777 (D.C. Cir. 1980).
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A provision of the Dodd-Frank Act expressly states that certain determinations by the Comptroller of the Currency shall receive only Skidmore
deference.315 Courts have given effect to this provision.316
3. Apparent but Possibly Ineffectual Variations on the Standard of
Review
As the previous section showed, some specific judicial review statutes genuinely vary the standard of review applicable to agency action. Numerous
specific judicial review statutes, however, contain other verbal formulas prescribing a difference in the standard of review that is more apparent than real.
In such statutes, it appears that Congress has taken the trouble to provide a
standard of review different from the default standard that would apply under
the APA, but Congress’s action is unclear. As a result, in some such cases courts
interpret the specific judicial review statute to provide for the same standard
of review as the default APA standard.
a) Specifying Only Some of the APA Standards in an Apparent Attempt
to Limit the Scope of Review
Section 706 of the APA lists several bases upon which a court may “hold
unlawful and set aside” agency action. Some specific judicial review statutes
mention just one of the bases listed in § 706 and state that a court shall set
aside an agency action if it fails to satisfy this basis. Of these statutes, some

315. 12 U.S.C. § 25b(b)(5(A). “Skidmore deference” is a reference to the pre-Chevron decision
in Skidmore v. Swift & Co., 323 U.S. 134 (1944), in which the Supreme Court said:
[T]he rulings, interpretations and opinions of the Administrator under this Act,
while not controlling upon the courts by reason of their authority, do constitute
a body of experience and informed judgment to which courts and litigants may
properly resort for guidance. The weight of such a judgment in a particular case
will depend upon the thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control.
Id. at 140. Courts still sometimes apply Skidmore deference to an agency’s interpretation of its
governing statute in cases in which the court determines that Chevron deference is inappropriate. E.g., United States v. Mead Corp., 533 U.S. 218, 234–35 (2001). Some judges, however,
regard Skidmore as an “empty truism.” Id. at 250 (Scalia, J., dissenting).
316. See Hymes v. Bank of Am., N.A., 408 F. Supp. 3d 171 (E.D.N.Y. 2019).
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state expressly that the agency action shall be set aside only if it fails to satisfy
the specified basis, thereby indicating that the other § 706 bases should not
apply. Others state that the agency action shall be set aside if it fails to satisfy
the specified basis, but do not expressly state that this is the only basis on
which an agency action may be set aside. Still, where a specific judicial review
statute states that a court may overturn an agency action on the basis of one
of the bases listed in § 706 and says nothing about the other bases, one might
imagine that this statute gives rise to the inference that the other bases do not
apply, because otherwise the specific judicial review provision would accomplish nothing. However, courts are not always scrupulous in attending to these
nuances, and if indeed these statutes are attempts to limit the available bases
for review, in at least some cases, courts have foiled these attempts.
i. “Not in Accordance with Law”
For example, 7 U.S.C. § 608c provides that handlers of agricultural products
subject to orders of the Secretary of Agriculture may seek judicial review of
such orders in district court, but it appears to limit such review to considering whether the Secretary’s action was “in accordance with law.”317 This
limited language, and particularly its inclusion of just one of the bases of
review set forth in § 706 of the APA, might be taken to suggest that the
district court is not empowered to set aside the Secretary’s action on the
other bases specified in § 706. For example, § 706 allows courts to set aside
agency action taken “without observance of procedure required by law,” but
the phrase “in accordance with law” might be construed to apply only to
agency actions that are substantively invalid, as opposed to those issued via
some procedural irregularity. Similarly, it is not textually obvious whether
an agency action would fail to be “in accordance with law” if the only defect
in the action were that it was “unsupported by substantial evidence.”
However, courts applying § 608c have considered whether the Secretary’s
actions were supported by substantial evidence318 and whether the Secretary followed proper procedures in issuing an order.319 Thus, even though the statutory

317. 7 U.S.C. § 608c(15).
318. E.g., Freeman v. Hygeia Dairy Co., 326 F.2d 271 (5th Cir. 1964).
319. E.g., Sequoia Orange Co. v. Yeutter, 973 F.2d 752 (9th Cir. 1992).
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standard might be construed to be more limited than that provided in § 706 of
the APA, courts have in fact understood the requirement that the agency action
be “in accordance with law” to incorporate the full range of potential bases of
judicial review contained in § 706.320
ii. “Substantial Evidence”
In a similar vein, some specific judicial review statutes authorize a court to
review agency action to determine whether the action is supported by “substantial evidence” in a way that appears to limit the court’s power of judicial
review, as the statute instructs the courts to set aside the agency’s action, or
the agency’s findings, only if they are unsupported by substantial evidence,321
or the statute says that the court shall sustain the agency’s action if it is supported by substantial evidence.322 In other cases, the statute simply says that the
court shall set aside the action if it is found not to be supported by substantial
evidence, potentially giving rise to the inference that other bases of review are
not available.323
Courts, however, do not always follow these potential variations in the
standard of review. For example, the statute providing for penalties under the
Magnuson-Stevens Fisheries Conservation and Management Act expressly
mentions the substantial evidence test, and while it does not expressly disclaim the other bases stated in § 706 of the APA, it might be thought to do
so by implication.324 However, courts have not hesitated to conduct review
under the entirety of § 706, including reviewing whether the agency action
was “in accordance with law.”325 Even more strikingly, the Federal Insecticide,
Fungicide, and Rodenticide Act provides that when a court reviews the EPA
Administrator’s registration of an insecticide, “[t]he order of the Administrator

320. Other statutes using this formulation include 7 U.S.C. §§ 2111, 2620, 2713, 3409; 12 U.S.C.
§ 4623(b).
321. E.g., 7 U.S.C. §§ 2621(b)(2), 2714(b)(2), 4314(b)(2).
322. E.g., 7 U.S.C. § 136n(b); 16 U.S.C. §§ 470aaa-6(b)(1), 470ff(b)(1).
323. E.g., 16 U.S.C. § 1858(b).
324. See id. (“The findings and order of the Secretary shall be set aside by such court if they are
not found to be supported by substantial evidence, as provided in section 706(2) of title 5.”).
325. See Pac. Ranger, LLC v. Pritzker, 211 F. Supp. 3d 196 (D.D.C. 2016); H & L Axelsson, Inc. v.
Pritzker, 16 F. Supp. 3d 353 (D.N.J. 2014).
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shall be sustained if it is supported by substantial evidence when considered on
the record as a whole.”326 Taken literally, this sentence might be understood to
bar review of the Administrator’s order on any basis other than that the order
is unsupported by substantial evidence. Nonetheless, courts have overturned
such orders on legal grounds, such as failure to comply with the requirements
of the Endangered Species Act.327
iii. “Arbitrary or Capricious”
Other specific judicial review statutes appear to limit review to whether the
challenged agency action is arbitrary or capricious. Again, such a provision
might be thought to give rise to the inference that review on other bases listed
in § 706 is prohibited. But cases do not necessarily support this interpretation.
For example, a provision of the Dodd-Frank Act provides that the Financial
Stability Oversight Council may designate nonbank entities for supervision by
the Board of Governors of the Federal Reserve if the entities are (in colloquial
terms) “too big to fail,”328 and the statute provides that judicial “[r]eview of such
an action shall be limited to whether the final determination made under this
section was arbitrary and capricious.”329 Does this restriction mean that a court
cannot overturn such a determination that is, for example, “not in accordance
with law”? In the only reported decision under the statute, the court held
that the agency’s action in designating a nonbank entity for supervision was
arbitrary and capricious because the action departed without explanation
from standards the agency had previously adopted.330 Moreover, the court

326. 7 U.S.C. § 136n(b) (emphasis added).
327. See Ctr. for Biological Diversity v. EPA, 861 F.3d 174 (D.C. Cir. 2017). One might justify
this decision on the basis that there was not substantial evidence to show that the agency had
complied with the Endangered Species Act. The court, however, did not mention the concept
of “substantial evidence” at all (those words do not appear in the court’s opinion); it simply
went straight to the legal question of whether the agency had complied with the Endangered
Species Act. Id.
328. 12 U.S.C. § 5323. The actual statutory formulation is that the designation may be made
“if the Council determines that material financial distress at the U.S. nonbank financial
company, or the nature, scope, size, scale, concentration, interconnectedness, or mix of the
activities of the U.S. nonbank financial company, could pose a threat to the financial stability
of the United States.” Id. § 5323(a)(1).
329. Id. § 5323(h).
330. Metlife, Inc. v. Fin. Stability Oversight Council, 177 F. Supp. 3d 219, 230 (D.D.C. 2016).
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considered the argument by the nonbank entity that it was statutorily “ineligible” for designation, thereby implicitly indicating that the court could have
overturned the agency’s action on the basis of legal error.331 Thus, even where
Congress specifically attempted to limit review to whether the agency action
is “arbitrary or capricious,” such review was held to encompass a wide range
of potential legal errors.
b) Other Variations that Might Appear to Limit Review
In some specific judicial review statutes, Congress provides a unique linguistic formula to guide review, and yet courts do not always treat the distinctive
formulation as any different from the standard formulation. For example,
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) provides that on judicial review of specified proceedings “the administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.”332 This formidable-sounding
language gives the appearance of severely limiting judicial review beyond the
usual principle that a court must uphold an agency’s factual determinations
if they are supported by “substantial evidence.”333 Yet courts, while acknowledging that this language “appears to be narrower” than the usual rule, have
“declined to treat the 1996 amendment as working any material change to
the standard of review.”334 These decisions seem correct. The Supreme Court
has long made clear that substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”335 Hence,
if a factual determination is not supported by substantial evidence, then no
reasonable adjudicator could have reached that determination—e.g., any rea-

331. Id. at 230–33.
332. 8 U.S.C. § 1252(b)(4)(B).
333. 5 U.S.C. § 706(2)(E).
334. Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (2004); see also Sevoian v. Ashcroft, 290
F.3d 166, 171 (3d Cir. 2002) (noting that the language of IIRIRA is drawn from a Supreme
Court case explaining the substantial evidence standard); Celicourt v. Barr, 980 F.3d 218,
221 (1st Cir. 2020) (treating the language of IIRIRA as an explanation of “the familiar and
deferential substantial evidence standard” (quoting Ivanov v. Holder, 736 F.3d 5, 11 (1st Cir.
2013))); Suate-Orellana v. Barr, 979 F.3d 1056, 1060 (5th Cir. 2020) (similarly using the IIRIRA
language to explain the substantial evidence standard); Morales Bribiesca v. Barr, 979 F.3d
508, 512 (6th Cir. 2020) (same).
335. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).
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sonable adjudicator would have been compelled to conclude to the contrary.
Thus, the formidable-sounding language of the IIRIRA turns out, on close
analysis, to be nothing more than a restatement of the ordinary substantial
evidence standard.
Similarly, § 245A of the Immigration and Reform Control Act (IRCA)
provides that, in specified cases, the findings of fact and determinations in
the administrative record “shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and
convincing facts contained in the record considered as a whole.”336 Courts regularly quote this language, and have noted that it provides for a “very narrow”
scope of judicial review.337 Still, as with the IIRIRA language, one may ask how
different the standard really is from the ordinary APA standard. Again, an
agency’s factual determinations normally need only survive review under the
“arbitrary [or] capricious” or “substantive evidence” standards, which require
only that the agency’s factual determinations be ones that a reasonable person might reach on the agency record.338 If a factual determination could not
survive review under the normal standard, then any reasonable person would
have reached a different factual determination based on the record, making it
likely that the factual determination could not survive review even under the
apparently more agency-favoring standard stated in the IRCA.
c) Apparent Attempts to Expand Review
On the other hand, in some instances Congress provides a variant on the
standard of review that appears to make review more stringent (i.e., less agency-favoring) than it would otherwise be, but this apparent distinction is not
always judicially respected. The most notable example is Association of Data
Processing Service Organizations, Inc. v. Board of Governors of the Federal Reserve
System.339 In that case, the D.C. Circuit considered a challenge to an agency regulation adopted through notice-and-comment rulemaking under § 553 of the

336. 8 U.S.C. § 1255a(f)(4)(B).
337. E.g., Siddiqui v. Holder, 670 F.3d 736, 742 (7th Cir. 2012); Ruginski v. INS, 942 F.2d 13, 17
(1st Cir. 1991).
338. Universal Camera Corp., 340 U.S. at 477.
339. 745 F.2d 677 (D.C. Cir. 1984).
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APA.340 Such a challenge would normally be subject to “arbitrary or capricious”
review under § 706 of the APA. The APA’s provision for “substantial evidence”
review would not apply to such a case, as that provision applies only to formal
agency proceedings conducted in accordance with §§ 556 and 557 of the APA
and not to informal rulemaking under § 553.341
However, a specific judicial review statute, 12 U.S.C. § 1848, subjected
the regulation to “substantial evidence” review.342 This statutory provision
might have been taken to suggest that Congress intended the regulation to
be subject to a different, more stringent, standard of review than the usual
“arbitrary or capricious” review, inasmuch as the statute would be redundant
if it merely provided for the regulation to be subject to the same standard of
review that would apply anyway under the APA. Nonetheless, the D.C. Circuit,
in a decision written by one future Supreme Court Justice for a panel that
included another,343 determined that there was no distinction between the
“arbitrary or capricious” review that usually applies to agency regulations and
the “substantial evidence” review that applied by virtue of 12 U.S.C. § 1848.344
Although the court acknowledged that the “substantial evidence” standard had
“acquired a reputation for being more stringent” than the “arbitrary or capricious” standard, it held that “their operation is precisely the same,” because it
would necessarily be arbitrary or capricious for an agency to act on the basis
of a factual determination that was not supported by substantial evidence.345
The D.C. Circuit’s analysis has been widely, if not universally, followed.346

340. Id.
341. Id. at 683–85.
342. Id. at 682–83.
343. Then-Judge Antonin Scalia wrote the court’s opinion, and the panel included then-Judge
Ruth Bader Ginsburg.
344. Association of Data Processing Serv. Orgs., 745 F.2d at 684.
345. Id. at 683–85.
346. See Ronald M. Levin, The Regulatory Accountability Act and the Future of APA Revision,
94 Chi.-Kent. L. Rev. 487, 540 nn.267–69 (2019) (citing cases from every other circuit that
favorably cite the D.C. Circuit’s Association of Data Processing Serv. Orgs. opinion or otherwise acknowledge the equivalence of the “arbitrary or capricious” and “substantial evidence”
standards). But see id. at 541 (“Occasionally, it is true, one can still find cases that assert that
the substantial evidence test is a stricter standard than the arbitrary-and-capricious test.”);
Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1213 (5th Cir. 1991) (“[T]he arbitrary and
capricious standard found in the APA and the substantial evidence standard found in TSCA
are different standards, even in the context of an informal rulemaking.”).
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4. Implications of the Above Analysis
In light of the above survey of specific judicial review provisions concerning
the standard of review, one thing is certainly clear: legislatively attempting
to vary the standard of review is a tricky business. There seems to be a fairly
strong judicial preference for following the usual standard of review. Even
where Congress provides an unusual linguistic formula to govern the standard
of review in a specific proceeding for judicial review of administrative action,
courts often end up applying the usual standard of review anyway. There are
several potential reasons for this judicial tendency.
In part, the judicial reluctance to depart from the usual formulas for the
standard of review may stem from practical difficulties in actually implementing different gradations within deferential review. As Judge Posner was fond of
observing, “there are limits to the fineness of the distinctions that judges are
able to make.”347 While characterizing his own view as “heretical[],”348 Judge
Posner maintained that “there are really only two standards of review—plenary
and deferential.”349 A reviewing court can decide what it thinks of a question,
or it can decide whether a reasonable person might have ruled as did the
initial decider, but any attempt to implement any finer gradations of review
than that is impractical.350 As then-Judge Scalia remarked in the Association
of Data Privacy Service Organizations case discussed above, “There is surely
little appeal to an ineffable review standard that lies somewhere in-between
the quantum of factual support required to go to a jury (the traditional ‘substantial evidence’ test) and the ‘preponderance of the evidence’ standard that

347. Reynolds v. City of Chicago, 296 F.3d 524, 527 (7th Cir. 2002).
348. United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995).
349. Morales v. Yeutter, 952 F.2d 954, 957 (7th Cir. 1991); see also Boyd, 55 F.3d at 242 (“[T]here
are more verbal formulas for the scope of appellate review (plenary or de novo, clearly erroneous,
abuse of discretion, substantial evidence, arbitrary and capricious, some evidence, reasonable
basis, presumed correct, and maybe others) than there are distinctions actually capable of being
drawn in the practice of appellate review.”).
350. See United States v. McKinney, 919 F.2d 405, 422–23 (7th Cir. 1990) (Posner, J., concurring) (explaining de novo and deferential review and denying the existence of any
intermediate standard of review between them).
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would apply in de novo review.”351 Not everyone agrees, to be sure,352 but the
practical difficulty of implementing bespoke standards of review, when their
difference from the usual standards is almost indescribable, surely explains
part of the judicial tendency to disregard congressional attempts to vary the
usual standard of review.
An additional reason for the reluctance of courts to depart form the usual
standards of review is that, to the extent a specific judicial review provision
apparently provides less stringent judicial review than is usually available, it
might run into the “presumption of reviewability,” which favors judicial review
of agency action, and which can be overcome only by clear and convincing
evidence of congressional intent to preclude review.353 While a variation in
the standard of review that allows some review to occur might appear to be
a mere “channeling” of review, which is usually permissible,354 the Supreme
Court has cited the presumption of reviewability as a consideration causing
it to give a narrow construction to apparently limiting language in a specific
judicial review statute.355 Thus, if the standard of review is too agency-favoring,
at some point it implicates the presumption of reviewability.
Some courts have also based their reluctance to depart from the standards
of review specified in § 706 of the APA on § 559 of the APA. This section provides that subsequent statutes cannot “supersede or modify” the APA unless
they do so expressly.356 In light of this requirement, some courts have concluded
that even if a specific judicial review statute includes an apparent variation on

351. Association of Data Privacy Serv. Orgs. v. Bd. of Governors of the Fed. Rsrv. Sys., 745 F.2d
677, 685 (D.C. Cir. 1984).
352. See Dickinson v. Zurko, 527 U.S. 150, 163–64 (1999) (holding that the Federal Circuit
must review findings of fact made by the Patent and Trademark Office under the “arbitrary
or capricious” standard, not the “clearly erroneous” standard (although noting that the difference “is a subtle one”)); Int’l Bhd. of Elec. Workers v. NLRB, 448 F.2d 1127, 1142 (D.C. Cir.
1971) (Leventhal, J., dissenting) (referring to a case in which an agency’s factual findings are
“supported by substantial evidence” and yet are “clearly erroneous” as “the case dreamed of by
law school professors”).
353. E.g., Abbott Lab’ys v. Gardner, 387 U.S. 136, 141 (1967).
354. See supra Part V.K.
355. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069–70 (2020).
356. 5 U.S.C. § 559 (2019).
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the standard of review, that variation should be given effect only if Congress’s
“intent to make a substantive change” is clear.357
Finally, the usual standards of review are tried and true. Through application in innumerable cases over decades, courts have acquired great familiarity
with them. The usual standards are, moreover, quite deferential to agencies—
sufficiently so that agencies should not, at least usually, require more protection
from judicial review than the usual standards give them.
One thing that certainly seems like a waste of effort is for Congress to
impose an unusual statutory formula that, upon examination, is really only
a different way of expressing the usual standard of review. As noted above,
the IIRIRA formula that courts should uphold factual findings in specified
immigration cases “unless any reasonable adjudicator would be compelled to
conclude to the contrary”358 sounds formidable but is really only a restatement
of the usual “substantial evidence” test. Inserting such an unfamiliar form
of words that, in the end, only leads courts back to the usual standard can
accomplish no great benefit but gives rise to the risk that courts will assume
that by using different language, Congress must have desired to work some
real difference in the standard of review. It would be better to say nothing.
Finally, if Congress does desire to vary the usual standard of review, the
above discussion shows that Congress needs to do so clearly and unequivocally.
Otherwise, it runs a distinct risk of having its desires thwarted by judicial
construction.
RECOMMENDATIONS:
1. Congress should vary the standard of review for judicial review of agency
action only when it has a compelling reason to do so.
2. Congress should be aware that courts prefer to conduct judicial
review of agency action under the familiar standards of review provided
in 5 U.S.C. § 706 and may disregard congressional attempts to vary
the standard of review that are not sufficiently clear. When Congress
desires to vary the standard of review, it should make its desire to do

357. Association of Data Processing Serv. Orgs. v. Bd. of Governors of Fed. Rsrv. Sys., 745 F.2d
677, 685–86 (D.C. Cir. 1984) (emphasis omitted).
358. 8 U.S.C. § 1254(b)(4)(B).
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so unequivocally clear in the text of the specific judicial review statute.
The statute should also make clear exactly what the difference between
its desired standard of review and the usual standard of review is.
3. Congress should not, in a specific judicial review statute, use a different
form of words to prescribe a standard of review that is the same as the standard that would apply anyway by virtue of 5 U.S.C. § 706.

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VI
A Checklist for Congress

C

ongress creates or amends judicial review statutes frequently. The
Statutory Analysis Spreadsheet contains some 650 specific judicial
review statutory provisions with dates ranging from 1910 to 2017,
which suggests that Congress has, on average, created about 6 specific judicial
review provisions every year. Moreover, the rate has accelerated. The table
contains about 250 statutory provisions passed since 1990; so, from 1990 to
2017, Congress created specific judicial review provisions at a rate of almost 9
per year. A single statute may contain multiple specific judicial review provisions, so these figures do not mean that Congress, on average, passes a statute
containing a specific judicial review provision 6 or 8 separate times per year.
Still, the point is that Congress acts in this area frequently.
It would therefore likely be useful to Congress to have a checklist of points
to consider as it drafts specific judicial review statutes. Such a checklist would
facilitate Congress’s consideration of the necessary points and help Congress
avoid forgetting to consider some important matter that needs to be considered
in passing such a statute.
Work on this Sourcebook enables the provision of such a checklist for
Congress. The Checklist appears below. When Congress is considering passing
a specific judicial review statute, it should remember to consider the following
points.

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CHECKLIST FOR STATUTES
PROVIDING FOR JUDICIAL REVIEW OF AGENCY ACTION
• What Provisions are Necessary?
___	Bear in mind that the Administrative Procedure Act (APA)
automatically provides for judicial review of agency action
even if the specific statute governing the action says nothing
about judicial review.
___	If specifying anything other than the time and place to seek
review, consider whether what is being specified is necessary.
A few common provisions that are unnecessary are those
stating that:
• Seeking review does not by itself operate as a stay of
the agency action.
• Factual determinations by the agency, if supported
by substantial evidence, are conclusive.
• The agency shall file the record of its proceeding
with the reviewing court (if the court is a court of
appeals).
• After the reviewing court issues its decision, further
review will be available in a court of appeals (if the
initial court is a district court) and in the Supreme
Court by writ of certiorari (if the initial court is a
court of appeals).
• Specifying the Time Within Which to Seek Review
___	Specify the time within which a party must seek judicial
review of the agency’s action. (Bear in mind that if the time
is not specified, parties will normally have six years to seek
review.)

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A Checklist for Congress

___	Specify the time by stating that a party may seek review
“within” or “not later than” a specified number of days after
the agency action.
___	Avoid specifying the time by stating that a party must seek
review “before” or “prior to” the expiration of a specified
number of days from the agency action.
___	Ensure that the event that starts the time for seeking review
is clear.
___	When providing for review of regulations, provide that the
time for seeking review starts when the regulations are “published” in the Federal Register.
• Specifying Where to Seek Review
___	Bear in mind that placing initial review in a district court is
often not a good use of judicial resources, as judicial review
of agency action typically does not require the factfinding
capacity of a district court.
___	Consider placing review in a court of appeals rather than district court unless special considerations, such as the volume of
cases, make placing review in courts of appeals inappropriate.
___	For further guidance on this point, see ACUS Recommendation 75-3, The Choice of Forum for Judicial Review of
Administrative Action.359
• Specifying How to Seek Review
___	If providing for review to be sought initially in a court of
appeals, provide that parties may seek review by filing a “petition for review” with the court in which review is sought.

359. Recommendation 75-3, supra note 150.

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Avoid providing that parties shall file a “notice of appeal” or
other document.
___	If providing for review to be sought initially in a district court,
provide that parties may seek review by filing a “complaint”
with the court in which review is sought. Avoid providing
that parties shall file a “notice of appeal,” “petition for review,”
or other document.
___	Do not specify the required content of the document used to
initiate review.
• Service of the Document Initiating Review
___	Provide either that the party initiating review or the clerk of
the court in which review is initiated shall serve the document initiating review on the agency that made the decision
of which review is sought.
___	Do not provide that service must be made “simultaneously”
with filing.
• Issue Exhaustion
___	Consider whether to provide that a party seeking review may
not raise any issue in court that the party has not raised before
the agency. If a statute says nothing on this point, courts will
decide it by applying judicially developed doctrines.
___	In determining whether to impose an issue exhaustion
requirement, bear in mind that such requirements are most
appropriate with regard to agency proceedings that are
adjudicatory and that closely resemble adversarial judicial
proceedings.
___	Issue exhaustion requirements may be less appropriate for
rulemaking proceedings. Consider ACUS Statement #19

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A Checklist for Congress

for guidance on whether it is appropriate to impose an issue
exhaustion requirement for a rulemaking proceeding.360
• Prohibition of Review in Enforcement
___	Bear in mind that an agency action is usually subject to challenge in the context of an enforcement proceeding.
___	If desiring to prohibit challenge in the context of enforcement,
do so clearly.
• Standard of Review
___	Bear in mind that the APA provides a standard of review
(5 U.S.C. § 706), and that it is usually unnecessary for a
specific judicial review statute to say anything about the
standard of review.
___ Alter the standard of review only for compelling reasons.
___	Bear in mind that attempts to alter the standard of the review
are often the subject of judicial resistance.
___ If desiring to alter the standard of review, do so clearly.

360. Statement #19, supra note 239.

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VII
Recommendations

T

he following recommendations were proposed throughout this
Sourcebook by the author and offer improvements to existing judicial review statutes and to the process by which news ones are drafted.
These recommendations contributed, in part, to ACUS’s Recommendation
2021-5, Clarifying Statutory Access to Judicial Review of Agency Action, which
was prepared by the Committee on Judicial Review and adopted by the full
Assembly at the 75th Plenary Session.
RECOMMENDATION 1:
Congress should be aware that many provisions routinely included in
specific judicial review statutes are redundant. While there is little harm
in including such provisions, Congress should not make special efforts to
include redundant provisions, such as provisions stating that the filing of
an action for review does not automatically stay the agency action of which
review is sought, or that an agency’s factual determinations, if supported
by substantial evidence, shall be conclusive.
RECOMMENDATION 2:
Congress should avoid setting the time limit for seeking judicial review of
agency action as “prior to” or “before” the day that is a specified number of
days after the agency’s action, or requiring review to be sought “within” or
“before the expiration of” a period of a specified number of days beginning
on the date of the agency’s action.
RECOMMENDATION 3:
Congress should pass a savings statute providing that whenever another
statute allows judicial review to be sought “prior to” or “before” the day
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that is a specified number of days after an agency’s action, or “within” or
“before the expiration of” a period of a specified number of days beginning
on the date of the agency’s action, such review may also be sought exactly
that number of days after the agency’s action.
RECOMMENDATION 4:
Congress should ensure that a specific judicial review statute clearly specifies the event that starts the time to seek judicial review running. In the
case of specific judicial review statutes providing for review of agency rules
that must be published in the Federal Register, publication in the Federal
Register should be the event that starts the time running, and the date of
publication should be defined as the date of the issue of the Federal Register
in which the rule appears.
RECOMMENDATION 5:
In deciding where parties should seek review of agency action, Congress
should consider placing review in a court of appeals rather than district
court and should do so unless special considerations, such as the volume
of cases, make placing review in courts of appeals inappropriate. Further
guidance may be found in ACUS’s Recommendation 75-3.
RECOMMENDATION 6:
Congress should pass the general judicial review statute recommended by
this Sourcebook, which should include the following provision: “Wherever
a statute provides that a party may seek judicial review of an agency action
in a specified federal court, the specified court shall have jurisdiction to
hear the resulting case.”
RECOMMENDATION 7:
When providing for judicial review of agency action, Congress should
normally use the term “petition for review” to describe the document that
initiates review for cases to be brought in a court of appeals, and the term
“complaint” for the document that initiates review for cases to be brought
in a district court.
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RECOMMENDATION 8:
If Congress passes the general statute recommended herein, the statute
should include a provision stating that, when necessary, a court of appeals
shall treat a notice of appeal as a petition for review, or vice versa, and more
generally that an error in the style of the document that seeks judicial review
of agency action, which does not affect the substantive rights of the parties,
shall be disregarded.
RECOMMENDATION 9:
When providing that a party may seek judicial review by filing a petition
for review, Congress should not specify the required content of the petition
for review.
RECOMMENDATION 10:
Congress should again amend 28 U.S.C. § 2112(a)(1) by striking the phrase
“, from the persons instituting the proceedings, the” therefrom and inserting “a” in its place, in both places where the phrase occurs.
RECOMMENDATION 11:
When Congress requires the party seeking judicial review to serve the document initiating review on the agency that issued the order of which review
is sought, it should not require that such service be made “simultaneously”
with the filing of the document.
RECOMMENDATION 12:
Congress should provide that whenever a specific judicial review statute
requires that a party seeking review serve the document initiating review on
the agency that issued the order of which review is sought “simultaneously”
with filing the document, this requirement is satisfied if the document is
served on the agency within a set number of days (perhaps 14) of the filing
of the document.

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RECOMMENDATION 13:
In passing a specific judicial review statute, Congress should consider
whether it desires to impose an issue exhaustion requirement. Congress
should understand that if it does not expressly state in a specific judicial
review statute whether issue exhaustion is or is not required, courts will
make that decision on their own. Congress should be aware that issue
exhaustion is most appropriate for agency proceedings that resemble adversary civil litigation proceedings, but also that it may apply to rulemaking
proceedings. Congress may wish to consider ACUS’s Statement #19 for
guidance in deciding whether to impose issue exhaustion requirements
in review of rulemaking proceedings. Congress should also use consistent
wording when it imposes an issue exhaustion requirement.
RECOMMENDATION 14:
When providing for judicial review of agency action in a court of appeals,
Congress should be aware that it is not necessary to specify that the agency
shall file the record of its proceeding in the reviewing court, as such filing
is universally required by 28 U.S.C. § 2112 and Federal Rule of Appellate
Procedure 17.
RECOMMENDATION 15:
Congress should be aware that, if a special judicial review statute does not
clearly negate the ability of parties to challenge agency action in the context
of an enforcement proceeding, parties will have that ability. When Congress
desires parties not be permitted to challenge the validity of an agency action
as a defense in an enforcement proceeding, Congress should say so clearly.
RECOMMENDATION 16:
Congress should vary the standard of review for judicial review of agency
action only when it has a compelling reason to do so.
RECOMMENDATION 17:
Congress should be aware that courts prefer to conduct judicial review
of agency action under the familiar standards of review provided in
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Recommendations

5 U.S.C. § 706 and may disregard congressional attempts to vary the
standard of review that are not sufficiently clear. When Congress
desires to vary the standard of review, it should make its desire to do
so unequivocally clear in the text of the specific judicial review statute.
The statute should also make clear exactly what the difference between
its desired standard of review and the usual standard of review is.
RECOMMENDATION 18:
Congress should not, in a specific judicial review statute, use a different
form of words to prescribe a standard of review that is the same as the
standard that would apply anyway by virtue of 5 U.S.C. § 706.

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Appendix A
Administrative Conference Recommendation 2021-5
Clarifying Statutory Access to Judicial Review of Agency Action
86 Fed. Reg. 53262 (Sep. 27, 2021)
Adopted September 17, 2021

J

udicial review of federal administrative action is governed by numerous
statutes, including two general statutes, the Administrative Procedure
Act (APA)1 and the Hobbs Act,2 and hundreds of agency-specific statutes.
Judicial review is also governed by judicially developed doctrines.3 The APA’s
judicial review provisions govern judicial review of agency action generally
and provide default rules that apply in the absence of any more specifically
applicable rules. Agency-specific statutes (referred to herein as “specific judicial review statutes”) govern judicial review of actions of particular agencies
(often, of particular actions of particular agencies) and may provide specifically applicable rules that displace the general provisions of the APA.4 Certain
procedural aspects of judicial review are governed by federal court rules that
specify how to file a petition for review, the content of the record on review,
and other matters.5
The Administrative Conference of the United States undertook an initiative to identify and review all statutory provisions in the United States Code

1. 5 U.S.C. §§ 701–06.
2. 28 U.S.C. §§ 2341–51.
3. See generally John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev.
113 (1998).
4. See U.S.C. § 559 (providing that a “[s]ubsequent statute may not be held to supersede or
modify . . . chapter 7 [of the APA] . . . except to the extent that it does so expressly”).
5. See Fed. R. App. P. 15–20.
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governing judicial review of federal agency rules and adjudicative orders.6 In
the course of this initiative, the Conference observed various ways in which
some of these statutes create unnecessary obstacles to judicial review or overly
complicate the process of judicial review. The Conference recommends eliminating these obstacles and complications in order to promote efficiency and
fairness and to reduce unnecessary litigation.7
This Recommendation is divided into two sections. The first section
(Paragraphs 1-3) recommends a set of drafting principles for Congress when
it writes or amends specific judicial review statutes. The second section (Paragraphs 4 and 5) recommends the preparation and passage of a general judicial
review statute (referred to below as “the general statute”) that would cure
problems in existing judicial review statutes. The Conference’s Office of
the Chairman has announced that it will prepare and submit to Congress
a proposed statute for consideration that would provide for the statutory
changes in Paragraph 4. The specific topics covered in the Recommendation
are described below.

Specifying the Time Within Which to Seek Review
Judicial review statutes typically specify the time within which a party may
seek judicial review. The Conference’s review revealed two problems that some
such statutes cause. First, some specific judicial review statutes specify the

6. See Jonathan R. Siegel, Admin. Conf. of the U.S., Sourcebook of Federal Judicial
Review Statutes (draft May 28, 2021).
7. This Recommendation is not intended to address all issues related to access to judicial
review. For example, it does not address the time of accrual of a right of action under the general statute of limitations in 28 U.S.C. § 2401(a) (see, e.g., Wind River Mining Corp. v. United
States, 946 F.2d 710 (9th Cir. 1991)); the extent to which judicial review remains available
after the expiration of a time period specified in a special statute authorizing pre-enforcement review of agency rules (see, e.g., PDR Network, LLC v. Carlton & Harris Chiropractic,
Inc., 139 S. Ct. 2051 (2019)); the application of judge-made issue-exhaustion requirements in
curtailing judicial review (see, e.g., Carr v. Saul, 141 S. Ct. 1352 (2021)); or whether Congress
should specify where judicial review should be sought with regard to agency actions that are
not currently the subject of any specific judicial review statute (see 5 U.S.C. § 703 (providing
that review of such actions may be sought using “any applicable form of legal action . . . in
a court of competent jurisdiction”)). The Conference has addressed some of these issues in
past recommendations. See, e.g., Admin. Conf. of the U.S., Recommendation 82-7, Judicial
Review of Rules in Enforcement Proceedings, 47 Fed. Reg. 58208 (Dec. 30, 1982); Admin. Conf.
of the U.S., Recommendation 75-3, The Choice of Forum for Judicial Review of Administrative
Action, 40 Fed. Reg. 27926 (July 2, 1975).
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Appendix A

time limit using an unusual formulation that results in a time period one day
shorter than might be expected. In cases involving these statutes, some parties
have lost their right to review because they sought review one day late. Such
denials of review serve no substantial policy interest.8 Accordingly, Paragraph 1
provides that Congress, when specifying the time within which to seek judicial
review of agency action, should use one of the usual forms of words and avoid
the unusual forms.9 Paragraph 4(a) provides that Congress should include in
the recommended general judicial review statute a provision that would add
one day to the review period whenever a specific judicial review statute uses
one of the unusual forms, thus saving certain cases from dismissal.
The other problem relating to time limits is that some specific judicial
review statutes do not clearly identify the event that starts the time within
which to seek review. In particular, some specific judicial review statutes provide that the time for seeking review of an agency rule begins when the rule is
“issued” or “prescribed,” which has led to litigation about exactly what event
constitutes the “issu[ance]” of a rule.10 Paragraph 2 provides as a general matter that Congress should clearly specify what event starts the time for seeking
review of agency action. Where an agency promulgates, amends, or repeals
a rule after opportunity for participation by interested persons, Paragraph 2
also provides that, in drafting specific judicial review statutes providing for
review of an agency rule, Congress should provide that the time for review runs
from the rule’s publication in the Federal Register, where the rule is published

8. Siegel, supra note 6, at 26–30.
9. The recommended forms conform to those recommended by the drafting manuals of each
house of Congress. See U.S. House of Representatives, House Legislative Counsel’s
Manual on Drafting Style 57 (1995); U.S. Senate, Office of the Legislative Counsel,
Legislative Drafting Manual 81–82 (1997).
10. Siegel, supra note 6, at 31–32.
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in the Federal Register.11 This Recommendation does not address situations in
which rules do not have to be published in the Federal Register. Paragraph 4(b)
provides that Congress should include in the general statute a provision that
whenever a time period for seeking judicial review begins upon the issuance
of a rule and the rule is published in the Federal Register, the time starts when
the rule is published in the Federal Register.12

Specifying the Name and Content of the Document by
Which Review is Sought
When review is to be sought in a court of appeals, most specific judicial review
statutes provide that review should be sought by filing either a “petition for
review” or a “notice of appeal.” The term “petition for review” is more appropriate, as the term “appeal” suggests an appellate court’s review of a decision
by a lower court.13 Paragraph 3 therefore provides that specific judicial review
statutes should direct parties to seek review in a court of appeals by filing a
petition for review. Problems sometimes arise when a party incorrectly titles
the document. In most such cases, the reviewing court treats the incorrect
form as the correct one, but occasional decisions refuse to save a party who
has given the document the wrong name. Parties should not lose their right
to review by filing an incorrectly styled document.14 Paragraph 4(c) proposes

11. This Recommendation addresses judicial review of rules that are issued through a process
in which the agency solicits comments and then publishes a rule after consideration of those
comments. This Recommendation does not address situations, such as direct final rulemaking, interim-final rulemaking, and temporary rulemaking, in which an agency publishes a
rule in the Federal Register but invites post-promulgation comments or objections, which may
raise unique issues regarding statutes of limitations in some circumstances. See Admin. Conf.
of the U.S., Recommendation 95-4, Procedures for Noncontroversial and Expedited Rulemaking, 60 Fed. Reg. 43110 (Aug. 18, 1995). Those situations can present problems of determining
the event date for purposes of judicial review of the rule. Parties should be aware that statutes
of limitations may be construed to begin to run upon publication of any rule (whether styled
as a direct final, interim final, temporary, or otherwise) notwithstanding the agency’s maintaining a period for objections or comments to the rule after its publication. See, e.g., Milice v.
Consumer Prods. Safety Comm’n, 2 F.4th 994 (D.C. Cir. 2021).
12. If the relevant judicial review statute is silent with regard to computing or extending the
time within which to seek review, the Federal Rules of Civil Procedure and the Federal Rules
of Appellate Procedure apply. See Fed. R. Civ. P. 6; Fed. R. App. P. 26.
13. Siegel, supra note 6, at 38–40; see also Garland v. Dai, 141 S. Ct. 1669 (2021).
14. Siegel, supra note 6, at 38–40.
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to solve this problem consistent with Paragraph 3’s preference for “petitions
for review” in courts of appeals.
Paragraph 3 also provides that when review is to be sought in district
court, Congress should provide that it be initiated by filing a complaint. District court litigators are accustomed to initiating proceedings with a complaint,
and courts are also accustomed to this terminology because the Federal Rules
of Civil Procedure contemplate the initiation of an action with the filing of
a complaint.15 Statutes calling for review to be initiated in district court by
filing some other document, such as a petition for review or notice of appeal,
might be confusing. Paragraph 4(d) proposes a cure for this problem that is
consistent with the Paragraph 3’s preference for “complaints” in district courts.
Most specific judicial review statutes do not prescribe the content of the
document used to initiate review. This salutary practice allows the content
of the document to be determined by rules of court, such as Federal Rule of
Appellate Procedure 15, which contains only minimal requirements. A few
unusual specific judicial review statutes prescribe the content of the petition for
review in more detail. These requirements unnecessarily complicate judicial
review.16 Paragraph 3 reminds Congress that specific judicial review statutes
need not specify the required content of a petition for review and that Congress may allow the content to be governed by the applicable rules of court.
Paragraph 4(e) provides that Congress should include in the general statute a
provision generally allowing documents initiating judicial review to comply
either with an applicable specific judicial review statute or an applicable rule
of court.

Jurisdiction to Hear the Case
The Conference’s review uncovered another potential difficulty: some specific judicial review statutes provide that parties should seek review of agency
action in federal courts of appeals but do not specify that these courts will
have jurisdiction to hear the resulting cases. In such a case, a court of appeals

15. Fed. R. Civ. P. 3.
16. Siegel, supra note 6, at 40–41.
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might question whether it has jurisdiction to consider the petition for review.17
Accordingly, Paragraph 4(f) provides that Congress should include in the
general statute a provision that whenever a specific judicial review statute
authorizes a party to seek judicial review of agency action in a specified court,
the court will have jurisdiction to consider the resulting case.

Simultaneous Service Requirements
Another potential problem is that some specific judicial review statutes provide that the party seeking judicial review of agency action must transmit
the document initiating review to the agency “simultaneously” with filing
the document. Such a provision could cause a court to question what should
happen if a party seeking review serves the document initiating review on the
agency, but not “simultaneously” with filing the document. Although the Conference’s review has found no cases dismissed due to such circumstances, the
Conference is concerned that a court might read the statutory text as requiring
it to dismiss a petition for review based on the lack of simultaneous service.18
Paragraph 4(g) therefore provides that whenever a specific judicial review
statute requires a party seeking judicial review to serve a copy of the document
initiating review on the agency involved “simultaneously” with filing it, the
service requirement is satisfied if the document is served on the agency within
the number of days specified in the recommended general statute.

Race to the Courthouse, Revisited
The Conference’s Recommendation 80-5 addressed the “race to the courthouse” problem that arises when multiple parties seek judicial review of the
same agency action in different circuits.19 In accordance with that recommendation, Congress provided by statute that in such cases a lottery will determine
which circuit will review the agency’s action. The statute, however, provides

17. Id. at 35–37.
18. Id. at 41–45.
19. Admin. Conf. of the U.S., Recommendation 80-5, Eliminating or Simplifying the “Race to
the Courthouse” in Appeals from Agency Action, 45 Fed. Reg. 84954 (Dec. 24, 1980).
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that the lottery system applies only when an agency receives multiple petitions
for review “from the persons instituting the proceedings.”20 This provision
has been held not to apply to petitions for review forwarded to an agency by a
court clerk, as some specific judicial review statutes require. Parties invoking
judicial review under such specific judicial review statutes should be entitled
to the benefit of the lottery system.21 Paragraph 4(h) provides that Congress
should amend the “race to the courthouse” statute appropriately.

Recommendation
Recommendations to Congress When Drafting Judicial Review
Provisions
1. When specifying the time within which a party may seek judicial review
of agency action, Congress should provide that a party may seek review
“within” or “not later than” a specified number of days after an agency
action. Congress should avoid providing that a party may seek review “prior
to” or “before” the day that is a specified number of days after an agency
action, or “within” or “before the expiration of” a period of a specified
number of days beginning on the date of an agency’s action. Examples of
the recommended forms are:
a. “A party seeking judicial review may file a petition for review within
30 days after” the agency’s action.
b. “A party seeking judicial review may file a petition for review not later
than 30 days after” the agency’s action.
Examples of the forms to be avoided are:
c. “A party seeking judicial review may file a petition for review prior to
[or “before”] the 30th day after” the agency’s action.

20. 28 U.S.C. § 2112(a)(1).
21. Siegel, supra note 6, at 42–45.
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d. “A party seeking judicial review may file a petition for review within
[or “before the expiration of”] the 30-day period beginning on the date
of” the agency’s action.
2. Congress should clearly specify what event starts the time for seeking
review. Where the event is the promulgation, amendment, or repeal of a
rule by an agency following the opportunity for participation by interested
persons, Congress should provide that the event date is the date of the publication of the final rule in the Federal Register, where the rule is so published.
3. When drafting a statute providing for review in a court of appeals, Congress
should provide that review should be initiated by filing a petition for review.
When drafting a statute providing for review in a district court, Congress
should provide that review should be initiated by filing a complaint. With
regard to either kind of statute, Congress should be aware that it need not
specify the required content of the document initiating judicial proceedings
because that matter would be governed by the applicable court rules.
General Judicial Review Statute
4. Congress should enact a new general judicial review statute that includes
these provisions:
a. Whenever a specific judicial review statute provides that a party may
seek judicial review of an agency’s action “prior to” or “before” the day
that is a specified number of days after an agency’s action, or “within”
or “before the expiration of” a period of a specific number of days
beginning on the date of an agency’s action, review may also be sought
exactly that number of days after the agency’s action.
b. Whenever a specific judicial review statute provides that the event that
starts the time for seeking judicial review is the promulgation, amendment, or repeal of a rule by an agency following the opportunity for
participation by interested persons, the event date shall be the date of
the publication of the final rule in the Federal Register.
c. Statutes authorizing judicial review in a court of appeals by the filing
of a notice of appeal will be construed as authorizing judicial review
by the filing of a petition for review, and whenever a party seeking
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judicial review in a court of appeals styles the document initiating
review as a notice of appeal, the court will treat that document as a
petition for review.
d. Statutes authorizing judicial review in a district court by the filing of
a notice of appeal, petition for review, or other petition will be construed as authorizing judicial review by the filing of a complaint, and
whenever a party seeking judicial review in a district court styles the
document initiating review as a notice of appeal, petition for review,
or other petition, the court will treat that document as a complaint.
e. Whenever a specific judicial review statute specifies the required content of a document that initiates judicial review, a party may initiate
review with a document that complies with the requirements of that
statute or a document that complies with the applicable rules of court.
f. Whenever a specific judicial review statute provides that a party may
seek judicial review of an agency action in a specified federal court, the
specified federal court will have jurisdiction to hear the resulting case.
g. Whenever a specific judicial review statute requires that a party seeking review serve the document initiating review on the agency that
took the action of which review is sought “simultaneously” with filing
the document, this requirement is satisfied if the document is served
on the agency within a reasonable but specific number of days, such
as seven or fourteen days either before or after filing.
h. Congress should amend 28 U.S.C. § 2112(a)(1) by striking the phrase
“, from the persons instituting the proceedings, the” and inserting “a”
in its place, in both places where the phrase occurs.
5. The Conference’s Office of the Chairman should prepare and submit to
Congress a proposed general judicial review statute for consideration that
would provide for the statutory changes in Paragraph 4.

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Appendix B
Selected ACUS Recommendations and Statements
Relating to Judicial Review of Agency Action

Statement #19, Issue Exhaustion in Pre-Enforcement Judicial Review of Administrative Rulemaking, 80 Fed. Reg. 60611 (Oct. 7, 2015).
Recommendation 2013-6, Remand Without Vacatur, 78 Fed. Reg. 76272 (Dec.
17, 2013).
Recommendation 2013-4, Administrative Record in Informal Rulemaking, 78
Fed. Reg. 41358 (July 10, 2013).
Recommendation 2012-6, Reform of 28 U.S.C. Section 1500, 78 Fed. Reg. 2939
(Jan. 15, 2013).
Recommendation 93-4, Improving the Environment for Agency Rulemaking,
59 Fed. Reg. 4670 (Feb. 1, 1994).
Recommendation 91-9, Specialized Review of Administrative Action, 56 Fed.
Reg. 67143 (Dec. 30, 1991).
Recommendation 88-6, Judicial Review of Preliminary Challenges to Agency
Action, 53 Fed. Reg. 39585 (Oct. 11, 1988).
Recommendation 82-7, Judicial Review of Rules in Enforcement Proceedings,
47 Fed. Reg. 58208 (Dec. 30, 1982).
Recommendation 82-3, Federal Venue Provisions Applicable to Suits Against
the Government, 47 Fed. Reg. 30706 (July 15, 1982).
Recommendation 81-2, Current Versions of the Bumpers Amendment, 46 Fed.
Reg. 62806 (Dec. 29, 1981).
Recommendation 80-5, Eliminating or Simplifying the “Race to the Courthouse”
in Appeals from Agency Action, 45 Fed. Reg. 84954 (Dec. 24, 1980).

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Recommendation 79-6, Elimination of the Presumption of Validity of Agency
Rules and Regulations in Judicial Review, as Exemplified by the Bumpers
Amendment, 45 Fed. Reg. 2308 (Jan. 11, 1980).
Recommendation 75-3, The Choice of Forum for Judicial Review of Administrative Action, 40 Fed. Reg. 27926 (July 2, 1975).
Recommendation 74-4, Preenforcement Judicial Review of Rules of General
Applicability, 39 Fed. Reg. 23044 (June 26, 1974).
Recommendation 70-1, Parties Defendant, 1 C.F.R. § 305.70-1 (1977).
Recommendation 69-1, Statutory Reform of the Sovereign Immunity Doctrine,
1 C.F.R. § 305.69-1 (1977).
Recommendation 68-7, Elimination of Jurisdictional Amount Requirement in
Judicial Review, 1 C.F.R. § 305.68-7 (1977).

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