Congress should seek to eliminate procedural hurdles that impede statutory access to judicial review.
The United States Code is littered with statutes providing for judicial review of agency action. 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. . In carrying out this taxonomic undertaking, ACUS observed certain aspects in which the laws providing for judicial review could be improved. These issues were reviewed by the ACUS Judicial Review Committee and resulted in ACUS Recommendation 2021-5, “Clarification of Statutory 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 lists and classifies all statutes in the United States Code that govern judicial review of agency action. The Source book was inspired by ACUS Compendium of United States Executive Agencies, which listed the many federal executive agencies and listed the characteristics of each agency. Judicial control Source bookas contemplated by ACUS, similarly lists the statutes governing judicial review and enumerates their characteristics.
Several steps were necessary to create this Source book. First, ACUS staff members identified the legislative 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 categorize the 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 review
- 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 into a statutory analysis spreadsheet. This spreadsheet is one of the important results of the Source book project. It provides quick answers to many questions one 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. It contains observations 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 context and perspective for the information contained in the Statutory Analysis Worksheet.
One of the most striking features of judicial review statutes is the number of their provisions which are redundant. These provisions often state something that would be true anyway. For example, many provisions state that an application for judicial review of an action by an agency 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 statutory provisions state that an agency’s factual findings, if supported by substantial evidence, must 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 copied into new laws without much consideration as to whether it is really necessary.
Of course, not all judicial review laws 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 limit 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 judicial review suits would be the six-year statute of limitations that generally applies to suits against the United States.
While 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 to remove 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, in setting the time limit within which to seek review, use unusual wording. The time frame is usually expressed as “within” or “no later than” a specified number of days after the agency action. But some laws specify that the review must be requested “before” or “before” the day that is a specified number of days after the agency action. This less common wording provides one day less than the more common statutory wording and may cause parties to miss the time limit for seeking judicial review. Recommendation 2021-5 suggests that Congress avoid the less common wording. It also recommends 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 seek a review.
The recommendation also provides that Congress should clearly specify which event begins the time of review. In cases where the event is the publication of a regulation, the date of the event shall be the date of publication of the regulation in the Federal Register. Such clarification would preclude the government from arguing, as it has in some cases, that a regulation should be deemed “published” at an earlier date, such as the date the regulation is internally approved by the agency, although the public would have no way of knowing that approval until the rule appeared 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 in an appellate court, provide that the 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 the filing of an “equity bill,” even though such bills were abolished in 1938.)
ACUS recommends 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 recommends that Congress provide that a notice of appeal should be treated as a request 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 pitfalls for the unwary, Recommendation 2021-5 also recommends a revision of ACUS’ previous statutory solution to the “race to the courthouse” problem. An earlier ACUS recommendation, subsequently implemented by federal legislation, provides for a lottery system to determine which appellate court will review the agency’s action in a case where such examination is requested in several courts of appeal. The current law, however, is only triggered when an agency receives multiple requests for review “from persons initiating the proceedings” and has been found not to apply in cases where an agency receives a request for review transmitted by a court clerk. The insignificant detail of who sends the request for review to an agency should make no difference, and Recommendation 2021-5 suggests changing the law 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 Legislative Analysis Worksheet, which makes it quick and easy to determine the characteristics of hundreds of judicial review statutes. The second is the Source book, which puts these many statuses into perspective. And the final one is Recommendation 2021-5, which applies lessons learned from reading the hundreds of U.S. Code judicial review statutes and provides recommendations on ways to improve the judicial review system by removing unnecessary procedural hurdles. .
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.