Adoption of Recommendation, 53262-53264 [2021-20833]

Download as PDF 53262 Notices Federal Register Vol. 86, No. 184 Monday, September 27, 2021 This section of the FEDERAL REGISTER contains documents other than rules or proposed rules that are applicable to the public. Notices of hearings and investigations, committee meetings, agency decisions and rulings, delegations of authority, filing of petitions and applications and agency statements of organization and functions are examples of documents appearing in this section. ADMINISTRATIVE CONFERENCE OF THE UNITED STATES Adoption of Recommendation Administrative Conference of the United States. ACTION: Notice. AGENCY: The Assembly of the Administrative Conference of the United States unanimously adopted Recommendation 2021–5, Clarifying Access to Judicial Review of Agency Action, during its 75th Plenary Session. FOR FURTHER INFORMATION CONTACT: Mark Thomson, Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW, Washington, DC 20036; Telephone 202– 480–2080. SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C. 591–596, established the Administrative Conference of the United States. The Conference studies the efficiency, adequacy, and fairness of the administrative procedures used by Federal agencies and makes recommendations to agencies, the President, Congress, and the Judicial Conference of the United States for procedural improvements (5 U.S.C. 594(1)). For further information about the Conference and its activities, see www.acus.gov. The Assembly of the Conference met during its 74th Plenary Session on June 17, 2021, to consider five proposed recommendations. One of them, Clarifying Statutory Access to Judicial Review of Agency Action, was remanded to the Conference’s Committee on Judicial Review for further consideration of technical issues relating to rulemakings with postpromulgation comment periods. The original proposed recommendation was subsequently amended during a July 22, 2021, meeting of the Committee on Judicial Review, and the committeeamended proposal was unanimously lotter on DSK11XQN23PROD with NOTICES1 SUMMARY: VerDate Sep<11>2014 18:08 Sep 24, 2021 Jkt 253001 adopted via electronic vote at the 75th Plenary Session, which was conducted from 9 a.m. on September 13, 2021, until noon on September 17, 2021. Recommendation 2021–5, Clarifying Access to Judicial Review of Agency Action. This recommendation urges Congress to enact a cross-cutting statute that addresses certain recurring technical problems in statutory provisions governing judicial review of agency action that may cause unfairness, inefficiency, or unnecessary litigation. It also offers drafting principles for Congress when it writes new or amends existing judicial review statutes. It draws in large part on ACUS’s forthcoming Sourcebook of Federal Judicial Review Statutes, which analyzes the provisions in the U.S. Code governing judicial review of agency action. The Conference based this recommendation on research reports and prior history that are posted at: https://www.acus.gov/meetings-andevents/event/75th-plenary-session. Authority: 5 U.S.C. 595. Dated: September 21, 2021. Shawne C. McGibbon, General Counsel. Appendix—Recommendation of the Administrative Conference of the United States Administrative Conference Recommendation 2021–5 Clarifying Access to Judicial Review of Agency Action Adopted September 17, 2021 Judicial review of federal administrative action is governed by numerous statutes, including two general statutes, the Administrative Procedure Act (APA) 1 and the Hobbs Act,2 and hundreds of agencyspecific statutes. Judicial review is also governed by judicially developed doctrines.3 The APA’s judicial review provisions govern judicial review of agency action generally and provide default rules that apply in the absence of any more specifically applicable rules. Agency-specific statutes (referred to herein as ‘‘specific judicial review statutes’’) govern judicial review of actions of particular agencies (often, of particular actions of particular agencies) and may provide specifically applicable rules that displace the general provisions of the APA.4 Certain 15 U.S.C. 701–06. U.S.C. 2341–51. 3 See generally John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113 (1998). 4 See 5 U.S.C. 559 (providing that a ‘‘[s]ubsequent statute may not be held to supersede or modify . . . 2 28 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 procedural aspects of judicial review are governed by federal court rules that specify how to file a petition for review, the content of the record on review, and other matters.5 The Administrative Conference of the United States undertook an initiative to identify and review all statutory provisions in the United States Code governing judicial review of federal agency rules and adjudicative orders.6 In the course of this initiative, the Conference observed various ways in which some of these statutes create unnecessary obstacles to judicial review or overly complicate the process of judicial review. The Conference recommends eliminating these obstacles and complications in order to promote efficiency and fairness and to reduce unnecessary litigation.7 This Recommendation is divided into two sections. The first section (Paragraphs 1–3) recommends a set of drafting principles for Congress when it writes or amends specific judicial review statutes. The second section (Paragraphs 4 and 5) recommends the preparation and passage of a general judicial review statute (referred to below as ‘‘the general statute’’) that would cure problems in existing judicial review statutes. The Conference’s Office of the Chairman has announced that it will prepare and submit to Congress a proposed statute for consideration that would provide for the statutory changes in Paragraph 4. The specific topics covered in the Recommendation are described below. chapter 7 [of the APA] . . . except to the extent that it does so expressly’’). 5 See Fed. R. App. P. 15–20. 6 See Jonathan R. Siegel, Admin. Conf. of the U.S., Sourcebook of Federal Judicial Review Statutes (draft May 28, 2021). 7 This Recommendation is not intended to address all issues related to access to judicial review. For example, it does not address the time of accrual of a right of action under the general statute of limitations in 28 U.S.C. 2401(a) (see, e.g., Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991)); the extent to which judicial review remains available after the expiration of a time period specified in a special statute authorizing pre-enforcement review of agency rules (see, e.g., PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (2019)); the application of judge-made issue-exhaustion requirements in curtailing judicial review (see, e.g., Carr v. Saul, 141 S. Ct. 1352 (2021)); or whether Congress should specify where judicial review should be sought with regard to agency actions that are not currently the subject of any specific judicial review statute (see 5 U.S.C. 703 (providing that review of such actions may be sought using ‘‘any applicable form of legal action . . . in a court of competent jurisdiction’’)). The Conference has addressed some of these issues in past recommendations. See, e.g., Admin. Conf. of the U.S., Recommendation 82–7, Judicial Review of Rules in Enforcement Proceedings, 47 FR 58208 (Dec. 30, 1982); Admin. Conf. of the U.S., Recommendation 75–3, The Choice of Forum for Judicial Review of Administrative Action, 40 FR 27926 (July 2, 1975). E:\FR\FM\27SEN1.SGM 27SEN1 Federal Register / Vol. 86, No. 184 / Monday, September 27, 2021 / Notices Specifying the Time Within Which To Seek Review Judicial review statutes typically specify the time within which a party may seek judicial review. The Conference’s review revealed two problems that some such statutes cause. First, some specific judicial review statutes specify the time limit using an unusual formulation that results in a time period one day shorter than might be expected. In cases involving these statutes, some parties have lost their right to review because they sought review one day late. Such denials of review serve no substantial policy interest.8 Accordingly, Paragraph 1 provides that Congress, when specifying the time within which to seek judicial review of agency action, should use one of the usual forms of words and avoid the unusual forms.9 Paragraph 4(a) provides that Congress should include in the recommended general judicial review statute a provision that would add one day to the review period whenever a specific judicial review statute uses one of the unusual forms, thus saving certain cases from dismissal. The other problem relating to time limits is that some specific judicial review statutes do not clearly identify the event that starts the time within which to seek review. In particular, some specific judicial review statutes provide that the time for seeking review of an agency rule begins when the rule is ‘‘issued’’ or ‘‘prescribed,’’ which has led to litigation about exactly what event constitutes the ‘‘issu[ance]’’ of a rule.10 Paragraph 2 provides as a general matter that Congress should clearly specify what event starts the time for seeking review of agency action. Where an agency promulgates, amends, or repeals a rule after opportunity for participation by interested persons, Paragraph 2 also provides that, in drafting specific judicial review statutes providing for review of an agency rule, Congress should provide that the time for review runs from the rule’s publication in the Federal Register, where the rule is published in the Federal Register.11 This Recommendation does not 8 Siegel, supra note 6, at 26–30. recommended forms conform to those recommended by the drafting manuals of each house of Congress. See U.S. House of Representatives, House Legislative Counsel’s Manual on Drafting Style 57 (1995); U.S. Senate, Office of the Legislative Counsel, Legislative Drafting Manual 81–82 (1997). 10 Siegel, supra note 6, at 31–32. 11 This Recommendation addresses judicial review of rules that are issued through a process in which the agency solicits comments and then publishes a rule after consideration of those comments. This Recommendation does not address situations, such as direct final rulemaking, interimfinal rulemaking, and temporary rulemaking, in which an agency publishes a rule in the Federal Register but invites post-promulgation comments or objections, which may raise unique issues regarding statutes of limitations in some circumstances. See Admin. Conf. of the U.S., Recommendation 95–4, Procedures for Noncontroversial and Expedited Rulemaking, 60 FR 43110 (Aug. 18, 1995). Those situations can present problems of determining the event date for purposes of judicial review of the rule. Parties should be aware that statutes of limitations may be construed to begin to run upon publication of any rule (whether styled as a direct lotter on DSK11XQN23PROD with NOTICES1 9 The VerDate Sep<11>2014 18:08 Sep 24, 2021 Jkt 253001 address situations in which rules do not have to be published in the Federal Register. Paragraph 4(b) provides that Congress should include in the general statute a provision that whenever a time period for seeking judicial review begins upon the issuance of a rule and the rule is published in the Federal Register, the time starts when the rule is published in the Federal Register.12 Specifying the Name and Content of the Document by Which Review Is Sought When review is to be sought in a court of appeals, most specific judicial review statutes provide that review should be sought by filing either a ‘‘petition for review’’ or a ‘‘notice of appeal.’’ The term ‘‘petition for review’’ is more appropriate, as the term ‘‘appeal’’ suggests an appellate court’s review of a decision by a lower court.13 Paragraph 3 therefore provides that specific judicial review statutes should direct parties to seek review in a court of appeals by filing a petition for review. Problems sometimes arise when a party incorrectly titles the document. In most such cases, the reviewing court treats the incorrect form as the correct one, but occasional decisions refuse to save a party who has given the document the wrong name. Parties should not lose their right to review by filing an incorrectly styled document.14 Paragraph 4(c) proposes to solve this problem consistent with Paragraph 3’s preference for ‘‘petitions for review’’ in courts of appeals. Paragraph 3 also provides that when review is to be sought in district court, Congress should provide that it be initiated by filing a complaint. District court litigators are accustomed to initiating proceedings with a complaint, and courts are also accustomed to this terminology because the Federal Rules of Civil Procedure contemplate the initiation of an action with the filing of a complaint.15 Statutes calling for review to be initiated in district court by filing some other document, such as a petition for review or notice of appeal, might be confusing. Paragraph 4(d) proposes a cure for this problem that is consistent with the Paragraph 3’s preference for ‘‘complaints’’ in district courts. Most specific judicial review statutes do not prescribe the content of the document used to initiate review. This salutary practice allows the content of the document to be determined by rules of court, such as Federal Rule of Appellate Procedure 15, which contains only minimal requirements. A few unusual specific judicial review statutes prescribe the content of the petition for review in more detail. These requirements final, interim final, temporary, or otherwise) notwithstanding the agency’s maintaining a period for objections or comments to the rule after its publication. See, e.g., Milice v. Consumer Prods. Safety Comm’n, 2 F.4th 994 (D.C. Cir. 2021). 12 If the relevant judicial review statute is silent with regard to computing or extending the time within which to seek review, the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure apply. See Fed. R. Civ. P. 6; Fed. R. App. P. 26. 13 Siegel, supra note 6, at 38–40; see also Garland v. Dai, 141 S. Ct. 1669 (2021). 14 Siegel, supra note 6, at 38–40. 15 Fed. R. Civ. P. 3. PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 53263 unnecessarily complicate judicial review.16 Paragraph 3 reminds Congress that specific judicial review statutes need not specify the required content of a petition for review and that Congress may allow the content to be governed by the applicable rules of court. Paragraph 4(e) provides that Congress should include in the general statute a provision generally allowing documents initiating judicial review to comply either with an applicable specific judicial review statute or an applicable rule of court. Jurisdiction To Hear the Case The Conference’s review uncovered another potential difficulty: Some specific judicial review statutes provide that parties should seek review of agency action in federal courts of appeals but do not specify that these courts will have jurisdiction to hear the resulting cases. In such a case, a court of appeals might question whether it has jurisdiction to consider the petition for review.17 Accordingly, Paragraph 4(f) provides that Congress should include in the general statute a provision that whenever a specific judicial review statute authorizes a party to seek judicial review of agency action in a specified court, the court will have jurisdiction to consider the resulting case. Simultaneous Service Requirements Another potential problem is that some specific judicial review statutes provide that the party seeking judicial review of agency action must transmit the document initiating review to the agency ‘‘simultaneously’’ with filing the document. Such a provision could cause a court to question what should happen if a party seeking review serves the document initiating review on the agency, but not ‘‘simultaneously’’ with filing the document. Although the Conference’s review has found no cases dismissed due to such circumstances, the Conference is concerned that a court might read the statutory text as requiring it to dismiss a petition for review based on the lack of simultaneous service.18 Paragraph 4(g) therefore provides that whenever a specific judicial review statute requires a party seeking judicial review to serve a copy of the document initiating review on the agency involved ‘‘simultaneously’’ with filing it, the service requirement is satisfied if the document is served on the agency within the number of days specified in the recommended general statute. Race to the Courthouse, Revisited The Conference’s Recommendation 80–5 addressed the ‘‘race to the courthouse’’ problem that arises when multiple parties seek judicial review of the same agency action in different circuits.19 In accordance with that recommendation, Congress provided by statute that in such cases a lottery will determine which circuit will review the agency’s action. The statute, 16 Siegel, supra note 6, at 40–41. at 35–37. 18 Id. at 41–45. 19 Admin. Conf. of the U.S., Recommendation 80– 5, Eliminating or Simplifying the ‘‘Race to the Courthouse’’ in Appeals from Agency Action, 45 FR 84954 (Dec. 24, 1980). 17 Id. E:\FR\FM\27SEN1.SGM 27SEN1 53264 Federal Register / Vol. 86, No. 184 / Monday, September 27, 2021 / Notices however, provides that the lottery system applies only when an agency receives multiple petitions for review ‘‘from the persons instituting the proceedings.’’ 20 This provision has been held not to apply to petitions for review forwarded to an agency by a court clerk, as some specific judicial review statutes require. Parties invoking judicial review under such specific judicial review statutes should be entitled to the benefit of the lottery system.21 Paragraph 4(h) provides that Congress should amend the ‘‘race to the courthouse’’ statute appropriately. Recommendation lotter on DSK11XQN23PROD with NOTICES1 Recommendations to Congress When Drafting Judicial Review Provisions 1. When specifying the time within which a party may seek judicial review of agency action, Congress should provide that a party may seek review ‘‘within’’ or ‘‘not later than’’ a specified number of days after an agency action. Congress should avoid providing that a party may seek review ‘‘prior to’’ or ‘‘before’’ the day that is a specified number of days after an agency action, or ‘‘within’’ or ‘‘before the expiration of’’ a period of a specified number of days beginning on the date of an agency’s action. Examples of the recommended forms are: a. ‘‘A party seeking judicial review may file a petition for review within 30 days after’’ the agency’s action. b. ‘‘A party seeking judicial review may file a petition for review not later than 30 days after’’ the agency’s action. Examples of the forms to be avoided are: c. ‘‘A party seeking judicial review may file a petition for review prior to [or ‘‘before’’] the 30th day after’’ the agency’s action. d. ‘‘A party seeking judicial review may file a petition for review within [or ‘‘before the expiration of’’] the 30-day period beginning on the date of’’ the agency’s action. 2. Congress should clearly specify what event starts the time for seeking review. Where the event is the promulgation, amendment, or repeal of a rule by an agency following the opportunity for participation by interested persons, Congress should provide that the event date is the date of the publication of the final rule in the Federal Register, where the rule is so published. 3. When drafting a statute providing for review in a court of appeals, Congress should provide that review should be initiated by filing a petition for review. When drafting a statute providing for review in a district court, Congress should provide that review should be initiated by filing a complaint. With regard to either kind of statute, Congress should be aware that it need not specify the required content of the document initiating judicial proceedings because that matter would be governed by the applicable court rules. General Judicial Review Statute 4. Congress should enact a new general judicial review statute that includes these provisions: 20 28 [FR Doc. 2021–20833 Filed 9–24–21; 8:45 am] U.S.C. 2112(a)(1). supra note 6, at 42–45. 21 Siegel, VerDate Sep<11>2014 18:08 Sep 24, 2021 a. Whenever a specific judicial review statute provides that a party may seek judicial review of an agency’s action ‘‘prior to’’ or ‘‘before’’ the day that is a specified number of days after an agency’s action, or ‘‘within’’ or ‘‘before the expiration of’’ a period of a specific number of days beginning on the date of an agency’s action, review may also be sought exactly that number of days after the agency’s action. b. Whenever a specific judicial review statute provides that the event that starts the time for seeking judicial review is the promulgation, amendment, or repeal of a rule by an agency following the opportunity for participation by interested persons, the event date shall be the date of the publication of the final rule in the Federal Register. c. Statutes authorizing judicial review in a court of appeals by the filing of a notice of appeal will be construed as authorizing judicial review by the filing of a petition for review, and whenever a party seeking judicial review in a court of appeals styles the document initiating review as a notice of appeal, the court will treat that document as a petition for review. d. Statutes authorizing judicial review in a district court by the filing of a notice of appeal, petition for review, or other petition will be construed as authorizing judicial review by the filing of a complaint, and whenever a party seeking judicial review in a district court styles the document initiating review as a notice of appeal, petition for review, or other petition, the court will treat that document as a complaint. e. Whenever a specific judicial review statute specifies the required content of a document that initiates judicial review, a party may initiate review with a document that complies with the requirements of that statute or a document that complies with the applicable rules of court. f. Whenever a specific judicial review statute provides that a party may seek judicial review of an agency action in a specified federal court, the specified federal court will have jurisdiction to hear the resulting case. g. Whenever a specific judicial review statute requires that a party seeking review serve the document initiating review on the agency that took the action of which review is sought ‘‘simultaneously’’ with filing the document, this requirement is satisfied if the document is served on the agency within a reasonable but specific number of days, such as seven or fourteen days either before or after filing. h. Congress should amend 28 U.S.C. 2112(a)(1) by striking the phrase ‘‘, from the persons instituting the proceedings, the’’ and inserting ‘‘a’’ in its place, in both places where the phrase occurs. 5. The Conference’s Office of the Chairman should prepare and submit to Congress a proposed general judicial review statute for consideration that would provide for the statutory changes in Paragraph 4. BILLING CODE 6110–01–P Jkt 253001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 AGENCY FOR INTERNATIONAL DEVELOPMENT Notice of Request for Public Comment United States Agency for International Development (USAID). SUMMARY: The United States Agency for International Development (USAID) seeks Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, USAID requests public comment on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB. DATES: Send comments on or before November 26, 2021. ADDRESSES: You may submit comments by any of the following methods: 1. Email: jshahan@usaid.gov. 2. Web: Through the Federal eRulemaking Portal at www.regulations.gov by following the instructions for submitting comments. FOR FURTHER INFORMATION CONTACT: Kristen Rancourt, USAID Bureau for Management, Office of Management, Policy, Budget and Performance, Policy Division (M/MPBP/POL), telephone (202) 921–5119, or via email at krancourt@usaid.gov. SUPPLEMENTARY INFORMATION: AGENCY: I. Abstract The Exchange Visitor (EV) Visa Compliance program is a central management function that enables USAID to comply with statutory and regulatory requirements associated with sponsoring foreign nationals who enter the United States (U.S.) on a J–1 visa. This function aligns with the U.S. National Security Strategy, and the Foreign Assistance Act of 1961 authorizing the U.S. government to conduct educational and cultural exchanges for the purpose of strengthening the capacity and commitment of host-country nationals to address development challenges in their respective countries. These educational and cultural exchanges are defined by section 102 of the Mutual Educational and Cultural Exchange Act of 1961 (the ‘‘Act’’), 22 U.S.C. 2452. The regulations set forth in the Code of Federal Regulations (CFR) Title 22, Part 62 ‘‘Exchange Visitor Program’’ implement the Act, and appoints USAID as a designated sponsoring organization. Program sponsors are responsible for selecting, supporting and monitoring participants during their entire program stay. E:\FR\FM\27SEN1.SGM 27SEN1

Agencies

Administrative Conference of the United States

[Federal Register Volume 86, Number 184 (Monday, September 27, 2021)]
[Notices]
[Pages 53262-53264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20833]

========================================================================
Notices
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.

========================================================================

Federal Register / Vol. 86, No. 184 / Monday, September 27, 2021 /
Notices

[[Page 53262]]

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

Adoption of Recommendation

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Assembly of the Administrative Conference of the United
States unanimously adopted Recommendation 2021-5, Clarifying Access to
Judicial Review of Agency Action, during its 75th Plenary Session.

FOR FURTHER INFORMATION CONTACT: Mark Thomson, Administrative
Conference of the United States, Suite 706 South, 1120 20th Street NW,
Washington, DC 20036; Telephone 202-480-2080.

SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C.
591-596, established the Administrative Conference of the United
States. The Conference studies the efficiency, adequacy, and fairness
of the administrative procedures used by Federal agencies and makes
recommendations to agencies, the President, Congress, and the Judicial
Conference of the United States for procedural improvements (5 U.S.C.
594(1)). For further information about the Conference and its
activities, see www.acus.gov.
The Assembly of the Conference met during its 74th Plenary Session
on June 17, 2021, to consider five proposed recommendations. One of
them, Clarifying Statutory Access to Judicial Review of Agency Action,
was remanded to the Conference's Committee on Judicial Review for
further consideration of technical issues relating to rulemakings with
post-promulgation comment periods. The original proposed recommendation
was subsequently amended during a July 22, 2021, meeting of the
Committee on Judicial Review, and the committee-amended proposal was
unanimously adopted via electronic vote at the 75th Plenary Session,
which was conducted from 9 a.m. on September 13, 2021, until noon on
September 17, 2021.
Recommendation 2021-5, Clarifying Access to Judicial Review of
Agency Action. This recommendation urges Congress to enact a cross-
cutting statute that addresses certain recurring technical problems in
statutory provisions governing judicial review of agency action that
may cause unfairness, inefficiency, or unnecessary litigation. It also
offers drafting principles for Congress when it writes new or amends
existing judicial review statutes. It draws in large part on ACUS's
forthcoming Sourcebook of Federal Judicial Review Statutes, which
analyzes the provisions in the U.S. Code governing judicial review of
agency action.
The Conference based this recommendation on research reports and
prior history that are posted at: https://www.acus.gov/meetings-and-events/event/75th-plenary-session.
Authority: 5 U.S.C. 595.

Dated: September 21, 2021.
Shawne C. McGibbon,
General Counsel.

Appendix--Recommendation of the Administrative Conference of the United
States

Administrative Conference Recommendation 2021-5 Clarifying Access to
Judicial Review of Agency Action

Adopted September 17, 2021

Judicial review of federal administrative action is governed by
numerous statutes, including two general statutes, the
Administrative Procedure Act (APA) \1\ and the Hobbs Act,\2\ and
hundreds of agency-specific statutes. Judicial review is also
governed by judicially developed doctrines.\3\ The APA's judicial
review provisions govern judicial review of agency action generally
and provide default rules that apply in the absence of any more
specifically applicable rules. Agency-specific statutes (referred to
herein as ``specific judicial review statutes'') govern judicial
review of actions of particular agencies (often, of particular
actions of particular agencies) and may provide specifically
applicable rules that displace the general provisions of the APA.\4\
Certain procedural aspects of judicial review are governed by
federal court rules that specify how to file a petition for review,
the content of the record on review, and other matters.\5\
---------------------------------------------------------------------------

\1\ 5 U.S.C. 701-06.
\2\ 28 U.S.C. 2341-51.
\3\ See generally John F. Duffy, Administrative Common Law in
Judicial Review, 77 Tex. L. Rev. 113 (1998).
\4\ See 5 U.S.C. 559 (providing that a ``[s]ubsequent statute
may not be held to supersede or modify . . . chapter 7 [of the APA]
. . . except to the extent that it does so expressly'').
\5\ See Fed. R. App. P. 15-20.
---------------------------------------------------------------------------

The Administrative Conference of the United States undertook an
initiative to identify and review all statutory provisions in the
United States Code governing judicial review of federal agency rules
and adjudicative orders.\6\ In the course of this initiative, the
Conference observed various ways in which some of these statutes
create unnecessary obstacles to judicial review or overly complicate
the process of judicial review. The Conference recommends
eliminating these obstacles and complications in order to promote
efficiency and fairness and to reduce unnecessary litigation.\7\
---------------------------------------------------------------------------

\6\ See Jonathan R. Siegel, Admin. Conf. of the U.S., Sourcebook
of Federal Judicial Review Statutes (draft May 28, 2021).
\7\ This Recommendation is not intended to address all issues
related to access to judicial review. For example, it does not
address the time of accrual of a right of action under the general
statute of limitations in 28 U.S.C. 2401(a) (see, e.g., Wind River
Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991)); the
extent to which judicial review remains available after the
expiration of a time period specified in a special statute
authorizing pre-enforcement review of agency rules (see, e.g., PDR
Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051
(2019)); the application of judge-made issue-exhaustion requirements
in curtailing judicial review (see, e.g., Carr v. Saul, 141 S. Ct.
1352 (2021)); or whether Congress should specify where judicial
review should be sought with regard to agency actions that are not
currently the subject of any specific judicial review statute (see 5
U.S.C. 703 (providing that review of such actions may be sought
using ``any applicable form of legal action . . . in a court of
competent jurisdiction'')). The Conference has addressed some of
these issues in past recommendations. See, e.g., Admin. Conf. of the
U.S., Recommendation 82-7, Judicial Review of Rules in Enforcement
Proceedings, 47 FR 58208 (Dec. 30, 1982); Admin. Conf. of the U.S.,
Recommendation 75-3, The Choice of Forum for Judicial Review of
Administrative Action, 40 FR 27926 (July 2, 1975).
---------------------------------------------------------------------------

This Recommendation is divided into two sections. The first
section (Paragraphs 1-3) recommends a set of drafting principles for
Congress when it writes or amends specific judicial review statutes.
The second section (Paragraphs 4 and 5) recommends the preparation
and passage of a general judicial review statute (referred to below
as ``the general statute'') that would cure problems in existing
judicial review statutes. The Conference's Office of the Chairman
has announced that it will prepare and submit to Congress a proposed
statute for consideration that would provide for the statutory
changes in Paragraph 4. The specific topics covered in the
Recommendation are described below.

[[Page 53263]]

Specifying the Time Within Which To Seek Review

Judicial review statutes typically specify the time within which
a party may seek judicial review. The Conference's review revealed
two problems that some such statutes cause. First, some specific
judicial review statutes specify the time limit using an unusual
formulation that results in a time period one day shorter than might
be expected. In cases involving these statutes, some parties have
lost their right to review because they sought review one day late.
Such denials of review serve no substantial policy interest.\8\
Accordingly, Paragraph 1 provides that Congress, when specifying the
time within which to seek judicial review of agency action, should
use one of the usual forms of words and avoid the unusual forms.\9\
Paragraph 4(a) provides that Congress should include in the
recommended general judicial review statute a provision that would
add one day to the review period whenever a specific judicial review
statute uses one of the unusual forms, thus saving certain cases
from dismissal.
---------------------------------------------------------------------------

\8\ Siegel, supra note 6, at 26-30.
\9\ The recommended forms conform to those recommended by the
drafting manuals of each house of Congress. See U.S. House of
Representatives, House Legislative Counsel's Manual on Drafting
Style 57 (1995); U.S. Senate, Office of the Legislative Counsel,
Legislative Drafting Manual 81-82 (1997).
---------------------------------------------------------------------------

The other problem relating to time limits is that some specific
judicial review statutes do not clearly identify the event that
starts the time within which to seek review. In particular, some
specific judicial review statutes provide that the time for seeking
review of an agency rule begins when the rule is ``issued'' or
``prescribed,'' which has led to litigation about exactly what event
constitutes the ``issu[ance]'' of a rule.\10\ Paragraph 2 provides
as a general matter that Congress should clearly specify what event
starts the time for seeking review of agency action. Where an agency
promulgates, amends, or repeals a rule after opportunity for
participation by interested persons, Paragraph 2 also provides that,
in drafting specific judicial review statutes providing for review
of an agency rule, Congress should provide that the time for review
runs from the rule's publication in the Federal Register, where the
rule is published in the Federal Register.\11\ This Recommendation
does not address situations in which rules do not have to be
published in the Federal Register. Paragraph 4(b) provides that
Congress should include in the general statute a provision that
whenever a time period for seeking judicial review begins upon the
issuance of a rule and the rule is published in the Federal
Register, the time starts when the rule is published in the Federal
Register.\12\
---------------------------------------------------------------------------

\10\ Siegel, supra note 6, at 31-32.
\11\ This Recommendation addresses judicial review of rules that
are issued through a process in which the agency solicits comments
and then publishes a rule after consideration of those comments.
This Recommendation does not address situations, such as direct
final rulemaking, interim-final rulemaking, and temporary
rulemaking, in which an agency publishes a rule in the Federal
Register but invites post-promulgation comments or objections, which
may raise unique issues regarding statutes of limitations in some
circumstances. See Admin. Conf. of the U.S., Recommendation 95-4,
Procedures for Noncontroversial and Expedited Rulemaking, 60 FR
43110 (Aug. 18, 1995). Those situations can present problems of
determining the event date for purposes of judicial review of the
rule. Parties should be aware that statutes of limitations may be
construed to begin to run upon publication of any rule (whether
styled as a direct final, interim final, temporary, or otherwise)
notwithstanding the agency's maintaining a period for objections or
comments to the rule after its publication. See, e.g., Milice v.
Consumer Prods. Safety Comm'n, 2 F.4th 994 (D.C. Cir. 2021).
\12\ If the relevant judicial review statute is silent with
regard to computing or extending the time within which to seek
review, the Federal Rules of Civil Procedure and the Federal Rules
of Appellate Procedure apply. See Fed. R. Civ. P. 6; Fed. R. App. P.
26.
---------------------------------------------------------------------------

Specifying the Name and Content of the Document by Which Review Is
Sought

When review is to be sought in a court of appeals, most specific
judicial review statutes provide that review should be sought by
filing either a ``petition for review'' or a ``notice of appeal.''
The term ``petition for review'' is more appropriate, as the term
``appeal'' suggests an appellate court's review of a decision by a
lower court.\13\ Paragraph 3 therefore provides that specific
judicial review statutes should direct parties to seek review in a
court of appeals by filing a petition for review. Problems sometimes
arise when a party incorrectly titles the document. In most such
cases, the reviewing court treats the incorrect form as the correct
one, but occasional decisions refuse to save a party who has given
the document the wrong name. Parties should not lose their right to
review by filing an incorrectly styled document.\14\ Paragraph 4(c)
proposes to solve this problem consistent with Paragraph 3's
preference for ``petitions for review'' in courts of appeals.
---------------------------------------------------------------------------

\13\ Siegel, supra note 6, at 38-40; see also Garland v. Dai,
141 S. Ct. 1669 (2021).
\14\ Siegel, supra note 6, at 38-40.
---------------------------------------------------------------------------

Paragraph 3 also provides that when review is to be sought in
district court, Congress should provide that it be initiated by
filing a complaint. District court litigators are accustomed to
initiating proceedings with a complaint, and courts are also
accustomed to this terminology because the Federal Rules of Civil
Procedure contemplate the initiation of an action with the filing of
a complaint.\15\ Statutes calling for review to be initiated in
district court by filing some other document, such as a petition for
review or notice of appeal, might be confusing. Paragraph 4(d)
proposes a cure for this problem that is consistent with the
Paragraph 3's preference for ``complaints'' in district courts.
---------------------------------------------------------------------------

\15\ Fed. R. Civ. P. 3.
---------------------------------------------------------------------------

Most specific judicial review statutes do not prescribe the
content of the document used to initiate review. This salutary
practice allows the content of the document to be determined by
rules of court, such as Federal Rule of Appellate Procedure 15,
which contains only minimal requirements. A few unusual specific
judicial review statutes prescribe the content of the petition for
review in more detail. These requirements unnecessarily complicate
judicial review.\16\ Paragraph 3 reminds Congress that specific
judicial review statutes need not specify the required content of a
petition for review and that Congress may allow the content to be
governed by the applicable rules of court. Paragraph 4(e) provides
that Congress should include in the general statute a provision
generally allowing documents initiating judicial review to comply
either with an applicable specific judicial review statute or an
applicable rule of court.
---------------------------------------------------------------------------

\16\ Siegel, supra note 6, at 40-41.
---------------------------------------------------------------------------

Jurisdiction To Hear the Case

The Conference's review uncovered another potential difficulty:
Some specific judicial review statutes provide that parties should
seek review of agency action in federal courts of appeals but do not
specify that these courts will have jurisdiction to hear the
resulting cases. In such a case, a court of appeals might question
whether it has jurisdiction to consider the petition for review.\17\
Accordingly, Paragraph 4(f) provides that Congress should include in
the general statute a provision that whenever a specific judicial
review statute authorizes a party to seek judicial review of agency
action in a specified court, the court will have jurisdiction to
consider the resulting case.
---------------------------------------------------------------------------

\17\ Id. at 35-37.
---------------------------------------------------------------------------

Simultaneous Service Requirements

Another potential problem is that some specific judicial review
statutes provide that the party seeking judicial review of agency
action must transmit the document initiating review to the agency
``simultaneously'' with filing the document. Such a provision could
cause a court to question what should happen if a party seeking
review serves the document initiating review on the agency, but not
``simultaneously'' with filing the document. Although the
Conference's review has found no cases dismissed due to such
circumstances, the Conference is concerned that a court might read
the statutory text as requiring it to dismiss a petition for review
based on the lack of simultaneous service.\18\ Paragraph 4(g)
therefore provides that whenever a specific judicial review statute
requires a party seeking judicial review to serve a copy of the
document initiating review on the agency involved ``simultaneously''
with filing it, the service requirement is satisfied if the document
is served on the agency within the number of days specified in the
recommended general statute.
---------------------------------------------------------------------------

\18\ Id. at 41-45.
---------------------------------------------------------------------------

Race to the Courthouse, Revisited

The Conference's Recommendation 80-5 addressed the ``race to the
courthouse'' problem that arises when multiple parties seek judicial
review of the same agency action in different circuits.\19\ In
accordance with that recommendation, Congress provided by statute
that in such cases a lottery will determine which circuit will
review the agency's action. The statute,

[[Page 53264]]

however, provides that the lottery system applies only when an
agency receives multiple petitions for review ``from the persons
instituting the proceedings.'' \20\ This provision has been held not
to apply to petitions for review forwarded to an agency by a court
clerk, as some specific judicial review statutes require. Parties
invoking judicial review under such specific judicial review
statutes should be entitled to the benefit of the lottery
system.\21\ Paragraph 4(h) provides that Congress should amend the
``race to the courthouse'' statute appropriately.
---------------------------------------------------------------------------

\19\ Admin. Conf. of the U.S., Recommendation 80-5, Eliminating
or Simplifying the ``Race to the Courthouse'' in Appeals from Agency
Action, 45 FR 84954 (Dec. 24, 1980).
\20\ 28 U.S.C. 2112(a)(1).
\21\ Siegel, supra note 6, at 42-45.
---------------------------------------------------------------------------

Recommendation

Recommendations to Congress When Drafting Judicial Review
Provisions

1. When specifying the time within which a party may seek
judicial review of agency action, Congress should provide that a
party may seek review ``within'' or ``not later than'' a specified
number of days after an agency action. Congress should avoid
providing that a party may seek review ``prior to'' or ``before''
the day that is a specified number of days after an agency action,
or ``within'' or ``before the expiration of'' a period of a
specified number of days beginning on the date of an agency's
action. Examples of the recommended forms are:
a. ``A party seeking judicial review may file a petition for
review within 30 days after'' the agency's action.
b. ``A party seeking judicial review may file a petition for
review not later than 30 days after'' the agency's action.
Examples of the forms to be avoided are:
c. ``A party seeking judicial review may file a petition for
review prior to [or ``before''] the 30th day after'' the agency's
action.
d. ``A party seeking judicial review may file a petition for
review within [or ``before the expiration of''] the 30-day period
beginning on the date of'' the agency's action.
2. Congress should clearly specify what event starts the time
for seeking review. Where the event is the promulgation, amendment,
or repeal of a rule by an agency following the opportunity for
participation by interested persons, Congress should provide that
the event date is the date of the publication of the final rule in
the Federal Register, where the rule is so published.
3. When drafting a statute providing for review in a court of
appeals, Congress should provide that review should be initiated by
filing a petition for review. When drafting a statute providing for
review in a district court, Congress should provide that review
should be initiated by filing a complaint. With regard to either
kind of statute, Congress should be aware that it need not specify
the required content of the document initiating judicial proceedings
because that matter would be governed by the applicable court rules.

General Judicial Review Statute

4. Congress should enact a new general judicial review statute
that includes these provisions:
a. Whenever a specific judicial review statute provides that a
party may seek judicial review of an agency's action ``prior to'' or
``before'' the day that is a specified number of days after an
agency's action, or ``within'' or ``before the expiration of'' a
period of a specific number of days beginning on the date of an
agency's action, review may also be sought exactly that number of
days after the agency's action.
b. Whenever a specific judicial review statute provides that the
event that starts the time for seeking judicial review is the
promulgation, amendment, or repeal of a rule by an agency following
the opportunity for participation by interested persons, the event
date shall be the date of the publication of the final rule in the
Federal Register.
c. Statutes authorizing judicial review in a court of appeals by
the filing of a notice of appeal will be construed as authorizing
judicial review by the filing of a petition for review, and whenever
a party seeking judicial review in a court of appeals styles the
document initiating review as a notice of appeal, the court will
treat that document as a petition for review.
d. Statutes authorizing judicial review in a district court by
the filing of a notice of appeal, petition for review, or other
petition will be construed as authorizing judicial review by the
filing of a complaint, and whenever a party seeking judicial review
in a district court styles the document initiating review as a
notice of appeal, petition for review, or other petition, the court
will treat that document as a complaint.
e. Whenever a specific judicial review statute specifies the
required content of a document that initiates judicial review, a
party may initiate review with a document that complies with the
requirements of that statute or a document that complies with the
applicable rules of court.
f. Whenever a specific judicial review statute provides that a
party may seek judicial review of an agency action in a specified
federal court, the specified federal court will have jurisdiction to
hear the resulting case.
g. Whenever a specific judicial review statute requires that a
party seeking review serve the document initiating review on the
agency that took the action of which review is sought
``simultaneously'' with filing the document, this requirement is
satisfied if the document is served on the agency within a
reasonable but specific number of days, such as seven or fourteen
days either before or after filing.
h. Congress should amend 28 U.S.C. 2112(a)(1) by striking the
phrase ``, from the persons instituting the proceedings, the'' and
inserting ``a'' in its place, in both places where the phrase
occurs.
5. The Conference's Office of the Chairman should prepare and
submit to Congress a proposed general judicial review statute for
consideration that would provide for the statutory changes in
Paragraph 4.

[FR Doc. 2021-20833 Filed 9-24-21; 8:45 am]
BILLING CODE 6110-01-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.