This article was authored by Matthew Lee Wiener, ACUS’s Vice Chairman and Executive Director.
Five decades ago Judge Henry Friendly observed that the statutes governing judicial review of agency action represent “efflorescence of variety . . . unworthy of an ordered legal system.” Henry J. Friendly, Benchmarks 52 (1967). ACUS’s Office of the Chairman recently began an ambitious new project—Guide to Judicial Review of Federal Administrative Action—that will, in the first of its two phases, catalog that variety across the entire U.S. Code. No researcher has ever undertaken this daunting task.
The Administrative Procedure Act provides only default rules governing judicial review of agency action. See 5 U.S.C. §§ 701-706. (And incomplete ones at that: Title 28 addresses jurisdiction, venue, and other procedural matters.) Thousands of other provisions scattered throughout the U.S. Code govern review under particular regulatory programs. One especially important feature of many of these provisions is that they provide for review directly in the federal courts of appeals rather than in district courts. See, e.g., Nat’l Ass’n of Mfrs. v. Dept. of Def., 138 S. Ct. 617 (2018). (For ACUS’s views here, see Recommendation 75-3, The Choice of Forum for Judicial Review of Administrative Action.)
In the first phase of the project, ACUS staff will review every provision in the U.S. Code governing judicial review of agency rules and adjudicative orders. Staff will then catalog them in a database that identifies their key features: Which rules and orders do they make reviewable and which, if any, unreviewable? Who may seek review? In what court? By what procedures and under what standard of review? And so on. Over a dozen esteemed project advisors will assist ACUS staff in optimally structuring the database.
In the second phase, ACUS will engage an academic consultant (or consultants) to prepare the guide that gives its name to this project. The guide will do three main things:
(1) Provide an overview of how judicial review of agency action works, both as a matter of constitutional justiciability doctrine and, more importantly, statutory law.
(2) Draw generalizations from the database about the choices Congress has made in statutes governing judicial review.
(3) Identify the decisions Congress must make when drafting new judicial-review statutes and, relying on academic commentary and especially prior ACUS recommendations, the considerations it should consider bringing to bear on those decisions.
We expect that the guide will not only serve as a much-needed resource for the courts, academic researchers, the public, and especially Congress, but also help ACUS identify issues involving judicial review worthy of further study.