Judicial Review (Recommendations)

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Informed observers generally agree that the rulemaking process has become both increasingly less effective and more time-consuming. The Administrative Procedure Act does not reflect many of the current realities of rulemaking. The APA’s cumbersome “formal rulemaking” procedures are rarely used except in some adjudicative-type rate proceedings....

(a) This recommendation responds to proposals to amend statutes that govern venue in actions against the United States, its agencies, and its officials. It calls for two limited changes: (1) amendment of the district court transfer provision, 28 U.S.C. 1404(a), to provide explicitly that intervenors may request a change of venue, and (2) addition of a provision requiring that, when an...

A person adversely affected by an agency rule may ordinarily obtain judicial review of that rule either by instituting a direct review proceeding against the agency in an appropriate court (pre-enforcement review)1 or by asserting the invalidity of the rule as a defense...

Many agency actions subject to direct review in the courts of appeals involve more than one private party that may legitimately consider itself aggrieved by the agency action. In most such cases, a single court of appeals is not specified by statute as the reviewing court, and venue may lie in more than one such court. Many lawyers believe that one court of appeals is likely...

The Emergency Petroleum Allocation Act of 1973 provides the President with broad pricing and allocation authority over petroleum products. Pursuant to this authority, a succession of agencies—including the Federal Energy Office (FEO), the Federal Energy Administration (FEA), and, since the passage of the Department of Energy Organization Act of 1977 (DOE Act), the Department...

Symptomatic of concern that reviewing courts do not probe as deeply as they should into the legality of agency action and that, as a consequence, administrative rules may be too broad in their reach is the so-called Bumpers Amendment to S. 1477, the Federal Courts Improvement Act of 1979.

The Bumpers Amendment in its principal operative part amends 5 U.S.C. Sec. 706 to insert after the...

A. Jurisdiction and Powers of the Customs Court. The Customs Court has exclusive jurisdiction to review decisions of the Customs Service (1) denying protests of importers relating to certain enumerated matters and (2) rejecting petitions of United States manufacturers, producers or wholesalers to challenge certain actions taken with respect to merchandise imported...

The Congress has enacted provisions for judicial review in the Clean Air Act and the Federal Water Pollution Control Act (FWPCA) that are in some respects inconsistent, incomplete, ambiguous, and unsound.

Courts have sometimes felt constrained to stretch these statutes to achieve sensible results.  ln other instances, courts seem to have ignored...

This recommendation states criteria for use by the Congress in determining the appropriate forum for judicial review of federal administrative action.

The present forum for the review of most agency actions taken on formal evidentiary records is the court of appeals under specific statutory provisions. There are some exceptions. An important one...

With increasing frequency, rules of general applicability adopted by agencies informally pursuant to 5 U.S.C. § 553 are being reviewed by the courts directly, before they are applied to particular persons in adjudicative proceedings. Such review may be by courts of appeals under statutes, mostly older statutes, providing generally for judicial review of orders of specific...

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