Cataloging and Clarifying Judicial Review Laws

Congress should seek to eliminate procedural hurdles that impede statutory access to judicial review.

The US code is sprinkled with laws providing for judicial review of the agency’s actions. The Administrative Conference of the United States (ACUS) has sought to list all of these laws and categorize them according to many characteristics, such as whether they specify who can request a review, how the review must be requested, and the time limit for requesting a review. . As part of this taxonomic endeavor, ACUS observed certain aspects where the laws providing for judicial review could be improved. These issues were reviewed by the ACUS Judicial Review Committee and succeeded in ACUS Recommendation 2021-5, “Clarification of legal access to judicial review of Agency action.”

As a consultant hired by ACUS for this dual project—inventing laws and making recommendations—I describe in this essay both the creation by ACUS of a Compendium of Federal Laws on Judicial Review and the recommendation resulting from the research that led to the Source book.

ACSU Source book catalogs and classifies all United States Code statutes that govern judicial review of agency action. the Source book was inspired by ACUS Compendium of United States Executive Agencieswho catalog the many federal executive agencies and lists the characteristics of each agency. Judicial control Source bookas ACUS envisioned, similarly catalogs laws governing judicial review and lists their characteristics.

Several steps were necessary to create this Source book. First, ACUS staff members identified statutory provisions governing judicial review. They did this by electronically searching the US Code and combing through its tables of contents. Using these methods, CSIA staff identified over 650 judicial review provisions.

The staff and I then worked together to create a coding scheme to classify layouts. The scheme encoded many features of each judicial review statute, such as:

  • who can request an examination
  • the level of jurisdiction at which to request the review
  • the geographic location of the exam
  • the document used to initiate the review
  • the file under examination
  • the deadline for requesting a review
  • the exam standard
  • whether the party requesting the review must provide security
  • whether the party must exhaust administrative remedies

Staff then coded the entire group of over 650 provisions using the coding scheme. The results were compiled in statutory analysis spreadsheet. This spreadsheet is one of the important results of the Source book project. This provides quick answers to many questions you may have about a given judicial review law.

I then proceeded to read each judicial review provision that staff had identified and coded. the Source book is a compilation of what I learned doing it. This contains comments on many features of judicial review statutes. As for each characteristic discussed, the Source book describes common legislative provisions related to this feature, discusses policy issues raised by these provisions, and notes possible ways to address the issues raised. the Source book provides the context and perspective of the information contained in the statutory analysis spreadsheet.

One of the most striking features of judicial review statutes is the number of provisions are redundant. These arrangements often State something that would be true anyway. For example, many provisions to affirm that an application for judicial review of an agency action should not, in itself, have the effect of staying the action. However, the courts have long established this point as a general question of administrative law. Similarly, many legislative provisions State that an agency’s factual findings, if supported by substantial evidence, will be conclusive. Again, this is a standard principle of administrative law that would be true whether or not it is stated in statute.

Why does Congress bother to restate so many things that would be true anyway? These redundant features likely persist because Congress models new judicial review laws on existing ones. Once a redundant feature is used in judicial review legislation, it is copy into new ones without asking too much if it’s really necessary.

Of course, these are not all judicial review laws are redundant. Many actually do something. For example, one of the important functions that judicial review legislation 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 be to apply to most judicial review suits would be the six-year statute of limitations that generally applies to suits against the United States.

As I read hundreds of judicial review statutes, I noticed ways to improve certain statutes, which led to Recommendation ACUS 2021-5.

The main theme of Recommendation 2021-5 is deletion traps for the unwary that some judicial review laws create 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 laws.

For example, some judicial review statutes, by setting the time limit within which to seek review, utilize an unusual form of words. The time frame is usually Express as “within” or “no later than” a specified number of days after the agency action. But some laws specify this review must be requested “before” or “before” the day that is a specified number of days after the agency action. This less common formula provides one day less than the most common legal wording and can result in the parties who have not respected the deadline for requesting a judicial review. Recommendation 2021-5 suggests that Congress avoid the less common formulation. This too recommended that Congress pass a law that would grant an extra day whenever a law uses the less common wording to set the time limit within which to request a review.

The recommendation also provides that Congress should clearly specify which event begins the review time. In cases where the event is the issuance of a settlement, the date of the event should either the date of publication of the regulations in Federal Register. Such clarification would prevent the government from arguing, because it possesses in some cases, that a settlement should be deemed to be “published” on an earlier date, such as the date the settlement is approved internally by the agency, even though the public would have no way of knowing that approval until until the rule appears in the Federal Register.

Problems may also arise regarding the mode of initiation of the examination. Most judicial review statutes, if they provide for review by an appellate court, provide this review can be requested by filing a request for review. But a few provide for filing a notice of appeal. (Amusing, some still require file an “equity invoice”, although such invoices were abolished in 1938.)

ACUS recommended that when the review is before an appellate court, Congress should provide that the review be sought by filing a petition for review, and it also recommended that Congress provides that a notice of appeal will 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 the review.

In addition to removing these traps for the unwary, Recommendation 2021-5 recommended a revision of ACUS’ previous statutory solution to the “race to the courthouse” problem. An earlier CAUS recommendation, subsequently implemented by the federal government legislation, provides for a lottery scheme to determine which appellate court will review agency action in a case where such review is sought in multiple appellate courts. However, the current law is sets off only where an organization receives multiple requests for review “from persons initiating the proceedings” and it has been determined that it does not apply in cases where an organization receives a request for review transmitted by a clerk. The insignificant detail of who sends the request for review to an agency should make no difference, and Recommendation 2021-5 suggests modify the status accordingly.

In sum, Recommendation 2021-5, if implemented, would remove some pesky procedural hurdles created, likely inadvertently, by the wording of some of the hundreds of judicial review statutes in the U.S. Code. These amendments would improve judicial review.

Overall, the ACUS project of identifying, cataloging and reading all judicial review provisions in the US Code produced several useful results. The first is the statutory analysis spreadsheet, which makes makes it quick and easy to determine the characteristics of hundreds of judicial review statutes. The second is the Source bookwho put these numerous statutes in perspective. And the last is Recommendation 2021-5, which applies the lessons learned from reading the hundreds of judicial review statutes in the U.S. Code and provides recommendations on how to improve the judicial review system by removing unnecessary procedural obstacles.

Jonathan R. Siegel is the F. Elwood and Eleanor Davis Research Professor at the George Washington University School of Law.

The opinions 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 United States Administrative Conference, titled Improving transparency and administrative accountability.

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