Judicial Review of Agency Action

This Section turns to judicial control of agency action. Perhaps the ultimate check on agencies is the ability to hale agencies or agency officials into court and obtain a ruling that an agency acted in violation of the law (both procedural law of the kind reviewed so far in this casebook and substantive law). The goal of this subsection is to provide you a working understanding of what judicial review of agency action generally looks like--the questions it can reach, the questions it can't, and the way that judges approach their task. In short, this subsection concerns the procedural law of litigation against administrative agencies.

To be clear, the role of judicial review in policing agency action and inaction is often overstated. As Christopher Walker recently put it, "[a]dministrative law, as a field, has long fixated on the role of federal courts in reviewing and constraining agency action," but in reality "[m]uch of administrative law happens without courts." Christopher J. Walker, Constraining Bureaucracy Beyond Judicial Review, 150 Daedalus155, 156-57 (2021). Contrary to conventional wisdom, most agency action is not litgated in court. See Cary Coglianese, Challenging the Rules: Litigation and Bargaining in the Administrative Process (1994).

The APA creates a cause of action for those aggrieved by agency action and waives the government's sovereign immunity. See 5 U.S.C. § 704. This is called "general statutory review." In addition, there is a veritable "jungle" of "special statutory review" statutes scattered across the U.S. Code that likewise authorize suit against agencies and their officials, sometimes with odd procedural quirks like starting litigation with a "petition for review" rather than a complaint, and doing so in specific courts of appeals rather than in district courts. See Jonathan R. Siegel, Administrative Conference of the United States: Sourcebook of Federal Judicial Review Statutes, at ix (2022). Obviously, most of the cases in this casebook came about through litigation authorized by either general statutory review statutes or special statutory review statutes (the rest likely arose under "nonstatutory review," which we will not cover). While this section of the class will likely be the most familiar to you as law students who have taken civil procedure, you will likely find the setup for judicial review of agency action somewhat bewildering. That is because, unlike ordinary civil litigation, administrative law generally endorses an "appellate review model" of judicial review of agency action. See Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939 (2011). In this model, which is pervasive in administrative law, Article III judges--whether they are district court judges or court of appeals judges--perform more like appellate courts than like trial courts. The agency--whether it is engaged in adjudication or in rulemaking--perform more in the role of the trial court. Instead of relying on discovery under the Federal Rules of Civil Procedure to generate a record for review, judges base their review exclusively on the record created by the agency (again, on the theory that agencies are performing the normal factfinding role of trial courts).

Another feature of the appellate review model is that reviewing courts generally are bound to apply certain "standards of review" similar to the standards of review that appellate courts use in reviewing trial court decisions on law and fact in ordinary civil litigation. Again, special statutory review statutes may set out widely varying standards, but for general statutory review under the APA, a standard slate of standards applies. These are all located in 5 U.S.C. § 706, entitled "Scope of Review" (although a better title might have been "Stringency of Review Depending on Agency Decision in Question"). Take a look at them now, even though they may not make complete sense to you at this point. In the coming classes, we will group these standards of review into three buckets--1) review of questions of law; 2) review of questions of policy; and 3) review of questions of fact--and spend a lot of time trying to understand how courts understand the APA's prescribed standards of review for these categories of action.

If you are confused, don't worry--this appellate review model takes some getting used to. The best way to get a handle on this is to jump right in and start observing what courts do when faced with arguments that agencies violate the law.