Congress should seek to remove procedural obstacles that inhibit statutory access to judicial review.
The U.S. Code is strewn with statutes providing for judicial review of agency action. The Administrative Conference of the United States (ACUS) sought to catalog all such statutes and to classify them according to numerous characteristics, such as whether they specify who may seek review, how review is to be sought, and the time limit for seeking review. In carrying out this taxonomic endeavor, ACUS observed some respects in which the statutes providing for judicial review could be improved. These matters were considered by ACUS’s Committee on Judicial Review and resulted in ACUS Recommendation 2021-5, “Clarifying Statutory Access to Judicial Review of Agency Action.”
As the consultant engaged by ACUS for this twofold project—cataloging statutes and making recommendations—I describe in this essay both ACUS’s creation of a Sourcebook of Federal Judicial Review Statutes and the recommendation that grew out of the research that led to the Sourcebook.
The ACUS Sourcebook catalogs and classifies all statutes in the U.S. Code that govern judicial review of agency action. The Sourcebook was inspired by ACUS’s Sourcebook of United States Executive Agencies, which cataloged the many federal executive agencies and listed the characteristics of each agency. The judicial review Sourcebook, as ACUS envisioned, similarly catalogs statutes governing judicial review and lists their characteristics.
Several steps went into creating this Sourcebook. First, members of the ACUS staff identified statutory provisions governing judicial review. They did so by conducting electronic searches in the U.S. Code and by combing through its tables of contents. Using these methods, ACUS staff identified over 650 judicial review provisions.
The staff and I then worked together to create a coding schema to classify the provisions. The schema encoded numerous features of each judicial review statute, such as:
- who may seek review
- the level of court in which to seek review
- the geographic venue for review
- the document used to initiate review
- the record on review
- the time within which to seek review
- the standard of review
- whether the party seeking review must provide security
- whether the party must exhaust administrative remedies
The staff then coded the entire group of more than 650 provisions using the coding schema. The results were compiled into a statutory analysis spreadsheet. This spreadsheet is one of the important outputs of the Sourcebook project. It provides quick answers to many questions one might have about any given judicial review statute.
I then proceeded to read every provision for judicial review that the staff had identified and coded. The Sourcebook is a compilation of what I learned by doing so. It contains observations about numerous features of judicial review statutes. As to each feature discussed, the Sourcebook describes common statutory provisions related to that feature, discusses policy issues raised by such provisions, and notes possible ways to deal with the issues raised. The Sourcebook provides background and perspective for the information contained in the statutory analysis spreadsheet.
One of the most striking features of the judicial review statutes is how many of their provisions are redundant. These provisions often state something that would be true anyway. For example, many provisions assert that seeking judicial review of an agency action shall not, in itself, operate to stay the action. Courts have long established this point, however, as a general matter of administrative law. Similarly, many statutory provisions state that an agency’s factual findings, if supported by substantial evidence, shall be conclusive. Again, this is a standard principle of administrative law that would be true whether it was stated in a statute or not.
Why does Congress take the trouble to restate so many things that would be true anyway? These redundant features probably persist because Congress models new judicial review statutes on existing ones. Once a redundant feature is used in a judicial review statute, it is copied into new ones without much consideration as to whether it is really needed.
Of course, not all judicial review statutes are redundant. Many actually do something. For example, one of the important functions that a judicial review statute can perform is to specify the time within which a party must seek judicial review. In the absence of a specified time limit, the only time limit that would apply to most suits for judicial review would be the six-year statute of limitations that generally applies to suits against the United States.
In the course of reading hundreds of judicial review statutes, I noticed ways to improve some of the statutes, which led to ACUS Recommendation 2021-5.
The main theme of Recommendation 2021-5 is removing traps for the unwary that some judicial review statutes create and that could interfere with judicial review. Parties should not lose their right to seek review because of idiosyncratic requirements included, probably unintentionally, in specific judicial review statutes.
For example, some judicial review statutes, in setting the time limit within which to seek review, use an unusual form of words. The time limit is usually expressed as “within” or “not later than” a specified number of days after the agency action. But some statutes specify that review must be sought “before” or “prior to” the day that is a specified number of days after the agency action. This less common formulation provides one fewer day than the more common statutory formulation and may result in parties missing the deadline to seek judicial review. Recommendation 2021-5 suggests that Congress avoid the less common formulation. It also recommends that Congress pass a statute that would allow an extra day whenever a statute does use the less common formulation to set the time within which to seek review.
The recommendation also provides that Congress should clearly specify what event starts the time for review. In cases where the event is the issuance of a regulation, the event date should be the date of the publication of the regulation in the Federal Register. Such a specification would prevent the government from arguing, as it has in some cases, that a regulation should be deemed “issued” on an earlier date, such as the date the regulation is internally approved by the agency, even if the public would have no way to know of such approval until the rule appears in the Federal Register.
Problems may also arise concerning the mode of initiating review. Most judicial review statutes, if providing for review in a court of appeals, provide that review may be sought by filing a petition for review. But some provide for the filing of a notice of appeal. (Amusingly, some still require filing a “bill in equity,” even though such bills were abolished in 1938.)
ACUS recommends that when review lies in a court of appeals, Congress should provide that review be sought by filing a petition for review, and it also recommends that Congress provide that a notice of appeal shall be treated as a petition for review. Again, a party should not lose its right to review for a trivial error such as using the wrong name for the document initiating review.
In addition to removing these traps for the unwary, Recommendation 2021-5 also recommends a revision to ACUS’s prior statutory solution to the “race to the courthouse” problem. An earlier ACUS recommendation, implemented subsequently by federal legislation, provides for a lottery system to determine which court of appeals shall conduct review of agency action in a case in which such review is sought in multiple courts of appeals. The existing statute, however, is triggered only when an agency receives multiple petitions for review “from the persons instituting the proceedings” and has been held not to apply in cases in which an agency receives a petition for review forwarded by a court clerk. The trivial detail of who sends the petition for review to an agency should make no difference, and Recommendation 2021-5 suggests amending the statute accordingly.
In sum, Recommendation 2021-5, if implemented, would remove some pesky procedural obstacles created, probably inadvertently, by language in some of the hundreds of judicial review statutes in the U.S. Code. These changes would improve judicial review.
Overall, the ACUS project of identifying, cataloging, and reading all the provisions for judicial review in the U.S. Code led to several useful outputs. The first is the statutory analysis spreadsheet, which makes it quick and easy to determine the characteristics of hundreds of judicial review statutes. The second is the Sourcebook, which puts these numerous statutes into perspective. And the last is Recommendation 2021-5, which applies the lessons learned from reading through the hundreds of judicial review statutes in the U.S. Code and provides recommendations for ways to improve the system of judicial review by removing needless procedural obstacles.
The views expressed in this essay are those of the author and do not necessarily represent the views of the Administrative Conference or the federal government.
This essay is part of a six-part series on the Administrative Conference of the United States, entitled Improving Transparency and Administrative Accountability.