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Attorney General's Manual on the Administrative Procedure Act

Prepared by the United States Department of Justice Tom C. Clark, Attorney General, 1947.

[93]

IX    SECTION 10--JUDICIAL REVIEW

The provisions of section 10 constitute a general restatement of the principles of judicial review embodied in many statutes and judicial decisions.(1) Section 10, it must be emphasized, deals largely with principles. It not only does not supersede special statutory review proceedings, but also generally leaves the mechanics of judicial review to be governed by other statutes and by judicial rules. For example, many statutes provide that where the reviewing court finds that the taking of new evidence would be warranted, such evidence must be presented to the agency with opportunity to modify its findings. See section 9 of the Securities Act (15 U.S.C. 77i). Such provisions continue in effect. Similarly, the time within which review must be sought will be governed, as in the past, by relevant statutory provisions or by judicial application of the doctrine of laches. See Section 5 (c) of the Federal Trade Commission Act (15 U.S.C. 45 (c)) and U.S. ex rel. Arant v. Lane, 249 U.S. 367 (1919). Accordingly, the general principles stated in section 10 must be carefully coordinated with existing statutory provisions and case law.(2)

Section 10 is applicable irrespective of whether the agency action for which review is sought was governed by the procedural provisions of sections 4, 5, 7 and 8. However, section 10 does not apply to those agencies and functions which are excepted by section 2 (a) from all provisions of the Act except section 3. For example, the provisions of section 10 are in no way applicable to the review of agency action taken pursuant to the Housing and Rent Act of 1947.

Section 10 became effective on September 11, 1946, and is applicable from that date to the judicial review of agency action.(3) However, the Department of Justice, in briefs filed in the Supreme Court, has taken the position that section 10 does not apply to cases which were pending in the courts on September 11, 1946. While these cases were decided by the Supreme Court without [94] any express reference to section 10, it seems fair to infer that the Court has accepted this construction. United States v. Ruzicka, 329 U.S. 287 (19-46); Board of Governors of the Federal Reserve System v. Agnew, 329 U.S. 441 (1947); Krug v. Santa Fe Pacific Rd. Co., 329 U.S. 591 (1947); Patterson v. Lamb, 329 U.S. 539 (1947).

SCOPE OF SECTION 10

Section 10 applies "Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion". The intended result of the introductory clause of section 10 is to restate the existing law as to the area of reviewable agency action. House Hearings (1945) p. 38 (Sen. Doc. p. 84).

A statute may in terms preclude, or be interpreted as intended to preclude, judicial review altogether. An example of a statute expressly precluding any judicial review is the Act of March 20, 1933 (38 U.S.C. 705) providing that "All decisions rendered by the Administrator of Veterans' Affairs under the provisions [of designated statutory sections] shall be final and conclusive on all questions of law and fact, and no other official or court of the United States shall have jurisdiction to review by mandamus or otherwise any such decision." Senate Hearings (1941) p. 1358. Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297 (1943), illustrates the interpretation of a statute as intended to preclude judicial review although the statute does not expressly so provide.(4) Sen. Rep. pp. 43-44 (Sen. Doc. pp. 229-230).

The provisions of section 10 are applicable "Except so far as agency action is by law committed to agency discretion." For an example of such unreviewable agency action, see United States v. George S. Bush & Co., 310 U.S. 371 (1940) (reaction by the President under section 336 (c) of the Tariff Act "if in his judgment" such action is necessary). More broadly, there are many statutory provisions which merely authorize agencies to make loans; under such statutes, the agencies' discretion is usually so complete that the refusal to make a loan is not reviewable under section 10 or [95] any other statute. Also, the refusal by the National Labor Relations Board to issue a complaint is, as heretofore, an exercise of discretion unreviewable by the courts. See Jacobsen v. National Labor Relations Board, 120 F. 2d 96 (C.C.A. 3, 1941), and Senate Comparative Print of June 1945, p. 19, para. (3) (Sen. Doc. p.38). For the same reason, the denial of a petition pursuant to section 4 (d) of this Act for the issuance, amendment or repeal

of a rule is not subject to judicial review. Sen. Rep. p. 44 (Sen. Doc. p. 230).

In addition, the introductory clause of section 10 provides a most important principle of construction for reconciling the provisions of the section with other statutory provisions relating to judicial review. All of the provisions of section 10 are qualified by the introductory clause, "Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion" [Emphasis supplied]. The emphasized phrase does not mean that every provision of section 10 is applicable except where statutes preclude judicial review altogether. Instead, it reads "Except so far as (1) statutes preclude judicial review", with the clear result that some other statute, while not precluding review altogether, will have the effect of preventing the application of some of the provisions of section 10. The net effect, clearly intended by the Congress, is to provide for a dovetailing of the general provisions of the Administrative Procedure Act with the particular statutory provisions which the Congress has moulded for special situations.(5) Thus, a civil service employee of the Federal Government who alleges unlawful removal from office, can obtain judicial review only of the question of whether the procedures of the Civil Service Act were followed. Levine v. Farley, 107 F. 2d 186 (App. D.C., 1939), certiorari denied, 308 U.S. 622. In such a case, the provisions of section 10 (e), for example, relating to substantial evidence and to review of abuses of discretion, will not apply.

SECTION 10 (a)--RIGHT OF REVIEW

Section 10 (a) provides that "Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant [96] statute, shall be entitled to judicial review thereof." This statement of the persons entitled to judicial review has occasioned considerable comment because of the use of the phrase "any person suffering legal wrong". This phrase was used as one of limitation and not for the purpose of making judicial review available to anyone adversely affected by governmental action.(6) The delicate problem of the draftsmen was to identify in general terms the persons who are entitled to judicial review. As so used, "legal wrong" means such wrong as particular statutes and the courts have recognized as constituting ground for judicial review. "Adversely affected or aggrieved" has frequently been used in statutes to designate the persons who can obtain judicial review of administrative action.(7) The determination of who is "adversely affected or aggrieved * * * within the meaning of any relevant statute" has "been marked out largely by the gradual judicial process of inclusion and exclusion, aided at times by the courts' judgment as to the probable legislative intent derived from the spirit of the statutory scheme". Final Report, p. 83; see also pp. 84-85. The Attorney General advised the Senate Committee on the Judiciary of his understanding that section 10 (a) was a restatement of existing law. More specifically he indicated his understanding that section 10 (a) preserved the rules developed by the courts in such cases as Alabama Power Co. v. Ickes, 302 U.S. 464 (1938); Massachusetts v. Mellon, 262 U.S. 447 (1923) The Chicago Junction Case, 264 U.S. 258 (1924); Sprunt & Son v. U.S., 281 U.S. 249 (1930); Perkins v. Lukens Steel Co., 310 U.S. 113 (1940); and Federal Communications Commission v. Sanders Brs. Radio Station, 309 U.S. 470 (1940). Sen. Rep. p. 44 (Sen. Doc. p. 230). This construction of section 10 (a) was not questioned or contradicted in the legislative history.(8) Also implied is the continuing role of the courts in determining, in the context of constitutional requirements and the particular statutory pattern, who is entitled to judicial review.

SECTION 10 (b)--FORM AND VENUE OF ACTION

Section 10 (b) provides that "The form of proceeding for judicial review shall be any special statutory review proceeding [97] relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction. Agency action shall be subject to judicial review in civil or criminal proceedings for judicial enforcement except to the extent that prior, adequate, and exclusive opportunity for such review is provided by law."

Form of action. Many regulatory statutes provide for judicial review of agency action by requiring the complaining party to file with a circuit court of appeals (or with a district court) a written petition praying that the agency action be modified or set aside; thereafter, the agency files with the reviewing court a transcript of the record.(9) Under such statutory provisions, the filing of a petition to modify or set aside agency action will continue to be the required form of proceeding for judicial review. Similarly, where agency action is now reviewable pursuant to the Urgent Deficiencies Act of 1913 (28 U.S.C. 47), the form of proceeding will consist of suits to enjoin(10) in accordance with the provisions of that Act.

In the absence of any special statutory review proceedings, other forms of action, as heretofore found by the courts to be appropriate in particular situations, will be used. Thus, habeas corpus proceedings should be used to obtain review of exclusion and deportation orders. U.S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103 (1927). Likewise, an order of the Postmaster General suspending second-class mailing privileges may, as before, be tested by a suit to enjoin such action. Hannegan v. Esquire, Inc., 327 U.S. 146 (1946). In brief, where agency action is reviewable, but the Congress has not specified the form of review, the courts will continue to select the appropriate form of action.

Also, where a special statutory review proceeding is not legally adequate, the form of proceeding for judicial review will be "any applicable form of legal action * * * in any court of competent jurisdiction". The Act does not purport to define "inadequate", [98] and thus leaves to the courts the determination of whether a particular statutory review proceeding is legally adequate. As stated by the Attorney General: "if the procedure is inadequate (i.e., where under existing law a court would regard the special statutory procedure as inadequate and would grant another form of relief), then any applicable procedure, such as prohibitory or mandatory injunction, declaratory judgment, or habeas corpus, is available". [Emphasis supplied]. Sen. Rep. p. 44 (Sen. Doc. p. 230). Thus, the Act does not provide any new definition of "adequate", but rather assumes that the courts will determine the adequacy of statutory review procedures by the legal standards which the courts themselves have already developed. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48 (1938).

Venue. Section 10 (b) does rot purport to change existing venue requirements for judicial review. In fact, it specifically refers to review "in any court specified by statute,", or "in any court of competent jurisdiction". In the report of the House Committee, it is stated that "The section does not alter venue provisions under existing law, whether in connection with specially provided statutory review or the so-called nonstatutory or commonlaw action variety." H.R. Rep. p. 42 (Sen. Doc. p. 276). See also Representative Walter's statement to the House, 92 Cong. Rec. 5654 (Sen. Doc. p. 369). Thus, for example, station and construction licensing orders issued by the Federal Communications Commission remain reviewable only by the Court of Appeals for the District of Columbia (47 U.S.C. 402 (b)). More generally, statutes specifically providing for judicial review in a circuit court of appeals or a district court often designate the venue by relation to the matters involved, such as "any circuit court of appeals of the United States in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein [the person aggrieved] resides or transacts business, or in the Court of Appeals of the District of Columbia". (Section 10 (f) of the National Labor Relations Act).(11) Such provisions are continued in effect. So also are the general statutory provisions concerning venue, such as 28 U.S.C. 112 that "no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant". For the application of this section to suits against [99] Government agencies, see Kentucky Natural Gas Corp. v. Public Service Comm., 28 F. Supp. 509, affirmed 119 F. 2d 417 (C.C.A. 6, 1941); and Scientific Mfg. Co. v. Walker, 40 F. Supp. 465 (M.D. Pa. 1941).

Review in enforcement proceedings. Section 10 (b) also provides that "Agency action shall be subject to judicial review in civil or criminal proceedings for judicial enforcement except to the extent that prior, adequate, and exclusive opportunity for such review is provided by law". In the Committee reports it is stated that "The provision respecting 'prior, adequate, and exclusive * * * review' in the second sentence is operative only where statutes, either expressly or as they are interpreted, require parties to resort to some special statutory form of judicial review which is prior in time and adequate to the case." [Emphasis supplied]. Sen. Rep. p. 27; H.R. Rep. p. 42 (Sen. Doc. pp. 213, 276). So interpreted, this provision restates existing law.(12) Thus, a statute may either expressly provide for an exclusive method of judicial review which precludes challenge of agency action in enforcement proceedings,(13) or a court may conclude from the statutory context that such was the legislative intention. United States v. Ruzicka, 329 U.S. 287 (1946), interpreting the Agricultural Marketing Agreement Act of 1937, is an excellent example of the latter situation.(14) Similarly, section 10 (b) leaves intact the doctrine of primary jurisdiction developed by the courts in cases involving the reasonableness of the charges of carriers and public utilities. See Ambassador, Inc. v. United States, 325 U.S. 317 (1945). It also leaves intact the requirements of the doctrine of exhaustion of administrative remedies. In many situations, however, an appropriate method of attacking the validity of agency action is to set up the alleged invalidity as a defense in a civil or criminal enforcement proceeding.

The adequacy of an exclusive method for judicial review would appear to be governed by the same considerations as the courts would apply in determining the adequacy or inadequacy of a [100] statutory review proceeding for the purposes of the first sentence of section 10 (b). Thus, the use of the word "prior" in the last sentence of section 10 (b) does not mean that the validity of agency action may always be challenged collaterally by way of defense in enforcement proceedings whenever the method of review specified by the Congress does not result in a judicial determination as to the validity of such action prior to the commencement of enforcement proceedings. As indicated above, the Congress intended section 10 as a whole to be integrated and reconciled with existing statutory provisions for judicial review. Specifically, the general principle stated in the last sentence of section 10 (b) was not regarded by the Congress as an innovation. Rather, it was said that "The second sentence states the present rule as to enforcement proceedings." Senate Comparative Print, p. 18 (Sen. Doc. p. 37). And further: "These provisions summarize the situation as it is now generally understood. The section [10 (b)] does not disturb special proceedings which Congress has provided, nor does it disturb the venue arrangements under existing law." Representative Walter, 92 Cong. Rec. 5654 (Sen. Doc. p. 369).

There are many situations in which the invalidity of agency action may be set up as a defense in enforcement proceedings. On the other hand, there are special statutory arrangements under which the Congress has provided for immediate and continuous enforcement while the exclusive route to judicial review is by first exhausting an administrative procedure; in such an agency proceeding, the agency and the parties make a record with a view toward (a) reconsideration by the agency itself, and (b) providing an adequate factual record as the basis for judicial review by a specified court. See United States v. Ruzicka, supra. There is nothing to indicate that the Congress intended to repeal by implication such special statutory arrangements for compliance pending orderly judicial review, or to preclude itself from making similar arrangements in the future. Similarly, it is believed that the courts are left free to apply the primary jurisdiction doctrine in enforcement proceedings so as to require issues relating to the alleged unreasonableness of filed tariffs to be first presented to the appropriate administrative agency rather than to an enforcement court. See Ambassador, Inc. v. United States, supra. In brief, the courts must determine in each case whether the Congress, by establishing a special review procedure, [101] intended to preclude or to permit judicial review of agency action in enforcement proceedings. And, the extent to which the "opportunity" for judicial review prior to the enforcement proceedings has been waived or disregarded by the defendant in those proceedings must also be considered.

SECTION 10 (e)--REVIEWABLE ACTS

The provisions of this subsection defining agency action subject to judicial review are said to "involve no departure from the usual and well understood rules of procedure in this field". Representative Walter, 92 Cong. Rec. 5654 (Sen. Doc. p. 369); Sen. Rep. p. 44 (Sen. Doc. p. 230).

First, it is provided that "Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review." Many statutes specifically provide for judicial review of particular agency action, and such action will continue to be reviewable. The second category, "and every final agency action for which there is no other adequate remedy in any court", must be interpreted in the light of other statutory and case law. To begin with, of course, it does not make reviewable agency action as to which "(1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion." Furthermore, this provision does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures. See the first clause of section 10 (b). Thus, the Customs Court and the Court of Customs and Patent Appeals retain their present exclusive jurisdictions.(15)

"Agency action", as used in section 10, is defined in section 2 (g) as including "the whole or part of every agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." Sen. Rep. p. 11; H.R. Rep. p. 21 (Sen. Doc. pp. 197, 255). While "final", as used to designate reviewable agency action, is not defined in the Act, its meaning may be gleaned from the second and third sentences of section 10 (c). Moreover, many regulatory statutes, either expressly or as they are interpreted, have provided for review of (and only of) "final" agency orders, with the result that the judicial construction of such provisions [102] will carry over to the interpretation of "final" as used in section 10 (b). See Rochester Telephone Corp. v. United States, 307 U.S. 125 (1939).

Since "agency action" is defined to include "rule", the question arises as to whether the phrase, "final agency action for which there is no other adequate remedy in any court", provides for direct judicial review of all rules. Many statutes which give rule making powers (particularly rules of general applicability) to agencies make no provision for judicial review of such rules. The validity of such rules has generally been open to challenge in proceedings for their enforcement. In addition, it has been suggested that in appropriate circumstances, review could be obtained in proceedings under the Declaratory Judgment Act (28 U.S.C. 400). It is clear from the legislative history that section 10 (c) was not intended to provide for judicial review in the abstract of all rules. Representative Walter stated to the House that "The provisions of this [sub] section are technical but involve no departure from the usual and well understood rules of procedure in this field." 92 Cong. Rec. 5654 (Sen. Doc. p. 369). Also, during the Senate Hearings in 1941, the subject of judicial review of rules was thoroughly discussed. Two of the bills then pending provided for direct judicial review of rules by declaratory judgment proceedings. (See S. 674 and S. 918). The inclusion of such a provision was strongly advocated by a minority of the Attorney General's Committee on Administrative Procedure who stated that their purpose was--

to adapt declaratory judgment procedure to this special subject. The minority feels that it is unnecessary and unwise to provide for court review (except where otherwise required by particular statutes) of rules in the abstract. On the other hand, such review upon the application of the rule to a particular person, or upon accepted principles of declaratory judgment, should be expressly recognized. In his letter accompanying the veto of the Logan-Walter bill, the Attorney General stated that--

under the Declaratory Judgments Act of 1934, any person may now obtain a judgment as to the validity of such administrative rules, if he can show such an interest and present injury therefrom as to constitute a "case or controversy."

However, the Declaratory Judgments Act does not altogether fit the subject and needs some limitation (not, it may be noted, extension) to care for the determination of fact issues, since under the Declaratory Judgments Act juries determine the facts under instructions from the presiding judge. In adapting declaratory judgment procedure to this field, some special provision must be made for the determination of facts, for otherwise the facts in the first instance would be determined through judicial rather than administrative process. (Senate Hearings (1941) pp. 1344, 1386.)

In other words, even the proponents of detailed provisions for judicial review of rules did not intend to prescribe an abstract form [103] of review going far beyond the limitations of the Declaratory Judgment Act. Thus, it is fair to conclude that the general statement in the first sentence of section 10 (c) was not intended to achieve such a result.

The second sentence of section 10 (c) provides that "Any preliminary, procedural, or intermediate agency action or ruling not directly reviewable shall be subject to review upon the review of the final agency action." This language was designed "to negative any intention to make reviewable merely preliminary or procedural orders where there is a subsequent and adequate remedy at law available, as is presently the rule." Senate Comparative Print, June 1945, p. 19(16) (Sen. Doc. p. 37). For example, intermediate orders such as orders setting matters for hearing are not reviewable either directly (Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375 (1938)) or collaterally, as by suits for injunction (Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938)) or declaratory judgment (Macauley v. Waterman S. S. Co., 327 U.S. 540 (1946); Federal Power Commission v. Arkansas Power & Light Co., per curiam, 330 U. S. 802 (1947)). The provision for review of such questions as a part of the review of final agency action restates existing practice. See section 10 (e) (4).

Section 10 (c) further provides that "Except as otherwise expressly required by statute, agency action otherwise final shall be final for the purposes of this subsection whether or not there has been presented or determined any application for a declaratory order, for any form of reconsideration, or (unless the agency otherwise requires by rule and provides that the action meanwhile shall be inoperative) for an appeal to superior agency authority." This provision, together with the preceding sentence of the subsection, embodies the doctrine of exhaustion of administrative remedies. H.R. Rep. p. 55, fn. 21 (Sen. Doc. p. 289). Agency action which is finally operative and decisive is reviewable. On the other hand, "Action which is automatically stayable on further proceedings invoked by a party is not final." H.R. Rep. p. 43 (Sen. Doc. p. 277).

It is specifically provided that agency action otherwise final is final for the purposes of the subsection notwithstanding a party's failure to apply for any form of agency reconsideration (reopening, rehearing, etc.), unless a statute expressly requires [104] an application for such reconsideration as a prerequisite to judicial review. Under statutes such as the Federal Power Act (16 U.S.C. 791, 825l) and the Natural Gas Act (15 U.S.C. 717r) which expressly require that such reconsideration be sought, the filing of an application for reconsideration will continue to be a condition precedent to judicial review. In addition, it would seem that under the common statutory provision that no objection to agency action not urged before the agency shall be considered by the courts, an application for agency reconsideration remains a prerequisite to obtaining judicial review of such an objection. See 15 U.S.C. 77 (I) and 49 U.S.C. 646 (e). However, under a statute which merely confers upon parties the right to apply for rehearing, it is now clear that an application for such reconsideration need not precede judicial review. See generally, as to the effect of agency rules in this field, Levers v. Anderson, 326 U.S. 219 (1945).

The last clause of section 10 (c) relates to two situations. First, pursuant to section 8 (a), an agency may permit its hearing examiners to make initial decisions which will become the agency's final decisions in the absence of an appeal to or review by the agency. The last clause of section 10 (c) permits an agency to require by rule that in such cases parties who are dissatisfied with the "initial" decisions of hearing officers must appeal to the agency before seeking judicial review, but only if the agency further provides that the hearing, officers' decisions shall be inoperative pending such administrative appeals. Thus, an agency with licensing powers may by rule require a party to appeal to it from an initial decision of a hearing officer only if, for example, the license suspension or revocation determined upon by the hearing officer is held in abeyance pending the agency's action on the appeal. Sen. Rep. p. 27; H.R. Rep. pp. 43, 55, fn. 21 (Sen. Doc. pp. 213, 277, 289).

The second and similar application of the last clause of section 10 (c) relates to appeals from agency decisions to a superior agency authority. For example, under some circumstances, it would seem that a bureau or other subdivision within an agency may itself be the agency with respect to a particular function. In such a situation, it may be desired to require appeal from the bureau's decision to the department head or other "superior agency authority" as a prerequisite to judicial review. Under section 10 (c), such a requirement may be imposed, but only, as [105] in the case of required appeals from hearing officers' initial decisions, if the agency's decision is inoperative pending such appeal. Sen. Rep. p. 27; H.R. Rep. p. 43 (Sen. Doc. pp. 213, 277).

The requirement that agency action be inoperative pending required appeals to the agency or to superior agency authority does not require the agency to take positive action for the benefit of an applicant. It was not intended to require the issuance of licenses or the payment of benefits in any case where an agency requires that the denial of licenses or benefits be appealed to it or to superior agency authority as a prerequisite to judicial review.(17)

SECTION 10 (d)--INTERIM RELIEF

Section 10 (d) provides that "Pending judicial review any agency is authorized, where it finds that justice so requires, to postpone the effective date of any action taken by it. Upon such conditions as may be required and to the extent necessary to prevent irreparable injury, every reviewing court (including every court to which a case may be taken on appeal from or upon application for certiorari or other writ to a reviewing court) is authorized to issue all necessary and appropriate process to postpone the effective date of any agency action or to preserve status or rights pending conclusion of the review proceedings." The first sentence of the subsection is a restatement of existing law.

The second sentence of section 10 (d) confers upon every "reviewing court" discretionary authority to stay agency action pending judicial review "to the extent necessary to prevent irreparable injury." The function of such a power is, as heretofore, to make judicial review effective. Sen. Rep. p. 27; H.R. Rep. p. 43 (Sen. Doc. pp. 213, 277). Scripps-Howard Radio, Inc. v. Federal Communications Commission, 316 U.S. 4 (1942). The subsection does not permit a court to order the grant of an initial license pending judicial review of an agency's denial of such a license. Sen. Rep. p. 27; H.R. Rep. p. 43 (Sen. Doc. pp. 213, 277). By the same logic, the subsection does not give to reviewing courts the power to order interim payment of grants or benefits the denial of which is the subject of review.

[106] The stay power conferred upon reviewing courts is to be exercised only "to the extent necessary to prevent irreparable injury." In other words, irreparable injury, the historic condition of equity jurisdiction, is the indispensable condition to the exercise of the power conferred by section 10 (d) upon reviewing courts. Sen. Rep. p. 44 (Sen. Doc. p. 230). Mere maintenance of the status quo for the convenience of parties pending judicial review of agency action will not be adequate ground for the exercise of this stay power.(18)

This power to stay agency action is an equitable power, to be exercised "upon such conditions as may be required." Section 10 (d) does not require the issuance of stay orders automatically upon a showing of irreparable damage. As in the past, reviewing courts may "balance the equities" in determining whether to postpone the effective date of agency action. Thus, "in determining whether agency action should be postponed, the court should take into account that persons other than parties may be adversely affected by such postponement and in such cases the party seeking postponement may be required to furnish security to protect such other persons from loss resulting from postponement." H.R. Rep. p. 43 (Sen. Doc. p. 277). More broadly, it is clear that a reviewing court in exercising this power may do so under such conditions as the equities of the situation may require.

The "reviewing court" in which section 10 (d) vests the power to stay agency action is the court, and only that court, which has obtained jurisdiction to review the final agency action in accordance with subsections (b) and (c) and the applicable provisions of particular statutes.(19) Section 10 (d) confers no power upon a court in advance of the submission to it of final agency action for review on the merits. See Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 383 (1938). This is the only logical conclusion to be drawn from the employment of the phrase "reviewing court", rather than "any court." Any other construction would twist section 10 (d) into a general grant of power to the Federal courts to review all kinds of questions presented by preliminary and intermediate agency action. The specific provisions of section 10 (c) defining reviewable action negate such a result. The legislative history of section 10 (d) is [107] equally persuasive; as S. 7 was introduced in the Senate, section 10 (d) provided for its exercise "to the extent necessary to afford an opportunity for judicial review of any question of law or prevent irreparable injury." The italicized language was dropped by the Senate Committee, which reported the subsection in its present form. Finally, section 10 (d) provides that the reviewing court may "issue all necessary and appropriate process to postpone the effective date of any agency action or to preserve status or rights pending conclusion of the review proceedings." [Emphasis supplied]. The italicized language is conclusive that the stay power conferred by the subsection is only ancillary to review proceedings--proceedings in which the court is reviewing final agency action within the meaning of section 10 (c).

Section 10 (d) prescribes no procedure for the exercise of the power which it confers upon reviewing courts to postpone the effective date of agency action. Section 381 of Title 28, U.S. Code,(20) contains general procedural provisions governing the issuance of preliminary injunctions and restraining orders. Since these procedural provisions are in no way inconsistent with section 10 (d), they appear to be applicable to the exercise of the power conferred by that subsection. Similarly, the provisions of the Urgent Deficiencies Act (28 U.S.C. 47), governing the procedure for the issuance of interlocutory injunctions and temporary stays, remain applicable in proceedings for judicial review under that Act.

SECTION 10(e)--SCOPE OF REVIEW

The scope of judicial review is defined in section 10 (e) as follows:

So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error.

[108] This restates the present law as to the scope of judicial review. Senate Comparative Print, June 1945, p. 20(21) (Sen. Doc. p. 39); House Hearings (1945) pp. 37-38 (Sen. Doc. pp. 83-84); Sen. Rep. pp. 38, 43, 44 (Sen. Doc. pp. 224, 229, 230).

Clause (A) authorizing a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed", appears to be a particularized restatement of existing judicial practice under section 262 of the Judicial Code (28 U.S.C. 377). Safeway Stores, Inc. v. Brown, 138 F. 2d 278 (E.C.A., 1943), certiorari denied, 320 U.S. 797. The power thus stated is vested in "the reviewing court", which, in this context, would seem to be the court which has or would have jurisdiction to review the final agency action. See Roche v. Evaporated Milk Ass'n., 319 U.S. 21, 25 (1943). Orders in the nature of a writ of mandamus have been employed to compel an administrative agency to act, Safeway Stores, Inc. v. Brown, supra, or to assume jurisdiction, Interstate Commerce Commission v. United States ex rel. Humboldt Steamship Co., U.S. 474 (1912), or to compel an agency or officer to perform a ministerial or non-discretionary act. Clause (A) of section 10 (e) was apparently intended to codify these judicial functions.

Obviously, the clause does not purport to empower a court to substitute its discretion for that of an administrative agency and thus exercise administrative duties. In fact, with respect to constitutional courts, it could not do so. Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923)); Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Commission v. General Electric Co., U.S. 464 (1930). However, as in Safeway Stores v. Brown, supra, a court may require an agency to take action upon a matter, without directing how it shall act.

The numbered clauses of section 10 (e) (B) restate the scope of the judicial function in reviewing final agency action. Sen. Rep. p. 44 (Sen. Doc. p. 230); Senate Hearings (1941) pp. 1150, 1351, 1400, 1437. Courts having jurisdiction have always exercised the power in appropriate cases to set aside agency action which they found to be "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, ,authority, or limitations, or [109] short of statutory right; (4) without observance of procedure required by law."

Clause (5) directs reviewing courts to "hold unlawful and set aside agency action, findings, and conclusions found to be * * * unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute." This is a general codification of the substantial evidence rule which, either by statute or judicial rule, has long been applied to the review of Federal administrative action. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197 (1938); National Labor Relations Board v. Remington Rand, 94 F. 2d 862 (C.C.A. 2, 1938). It will be noted that this codified substantial evidence rule is made applicable not only to cases governed by sections 7 and 8, but also to those types of cases in which statutes provide for agency hearings, but which are exempted from sections 7 and 8 by the introductory clause of section 5.

As to clause (6), the legislative history has resulted in misunderstanding. As S. 7 was introduced in the Senate, clause (6) was followed by a provision that "The relevant facts shall be tried and determined de novo by the original court of review in all cases in which adjudications are not required by statute to be made upon agency hearing." When S. 7 was reported by the Senate Committee, the quoted provision was omitted. Notwithstanding, the subsequent legislative history contains repeated statements to the effect that clause (6) embodies the "established rule * * * [which requires a judicial] trial de novo to establish the relevant facts as to the applicability of any rule and as to the propriety of adjudications where there is no statutory administrative hearing." Senate Comparative Print, June 1945, p. 20 (Sen. Doc. pp. 39-40); H.R. Rep. p. 45 (Sen. Doc. p. 279).

To the contrary, the language of clause (6), "to the extent that the facts are subject to trial de novo by the reviewing court", obviously refers only to those existing situations in which judicial review has consisted of a trial de novo. For example, reparation orders under the Interstate Commerce Act and the Packers and Stockyards Act have only prima facie weight and are thus reviewable de novo. In addition, there is no "established rule" requiring a judicial trial de novo wherever statutes fail to require an agency hearing. Thus, in deportation (8 U.S.C. 155) and mail fraud (39 U.S.C. 259) cases, hearings are held as a matter of [110] due process although the statutes do not require agency hearings. In both types of cases, the judicial review of agency action has consisted of a review of the record made in the agency proceeding to determine whether the agency action is supported by evidence.(22)

Accordingly, since clause (6) of section 10(e) prescribes a judicial trial de novo only in situations where other statutes or the courts have prescribed such review, it is clear that deportation and mail fraud orders will continue to be reviewable on the record made in the agency hearing, even though such hearing is not required by statute. Also, in National Broadcasting Company v. United States, 319 U.S. 190, 227 (1943), it was held that a trial de novo was not appropriate where, prior to the issuance of general regulations, the agency conducted a formal hearing although not required by statute to do so.

Finally, section 10 (e) provides that "In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error." This appears to restate existing law. Specifically, the phrase "whole record" was not intended to require reviewing courts to weigh the evidence and make independent findings of fact; rather, it means that in determining whether agency action is supported by substantial evidence, the reviewing court should consider all of the evidence and not merely the evidence favoring one side. Senate Hearings (1941) p. 1359.

The last phrase of section 10 (e) sums up in succinct fashion the "harmless error" rule applied by the courts in the review of lower court decisions as well as of administrative bodies, namely, that errors which have no substantial bearing on the ultimate rights of the parties will be disregarded. Market Street Ry. v. Comm'n., 324 U.S. 548, 561-2 (1945).

THE END

 1. See statements of Carl McFarland, Chairman of the Committee on Administrative Procedure of the American Bar Association, in House Hearings (1945) pp. 37-38 (Sen. Doc. pp. 83-84), and of the Attorney General in Sen. Rep. pp. 38, 43 (Sen. Doc. pp. 224, 229). 92 Cong. Rec. A2982 (Sen. Doc. pp. 406-407).

 2. Recognizing the delicacy of this problem and the obligation of Government counsel to render every assistance to the courts in this task, the Attorney General has established a committee within the Department of Justice to assist in developing a uniform approach to the problems which arise in litigation.

 3. See section 12 of the Act as to the effective dates of the various provisions of the Act.

 4. As S. 7 was introduced in the Senate in January 1945, the introductory phrase of section 10 read "Except (1) so far as statutes expressly preclude judicial review". [Italics supplied]. As reported in its present form by the Senate Committee on the Judiciary, the word "expressly" was omitted. This omission provides strong support for the conclusion that the courts remain free to deduce from the statutory context of particular agency action that the Congress intended to preclude judicial review of such action.

 5. This conclusion is supported by the following statement in the Senate Comparative Print, p. 18 (Sen. Doc. p. 36): "The introductory exceptions state the two present general or basic situations in which judicial review is precluded--where (1) the matter is discretionary or (2) statutes withhold judicial powers." [Italics supplied].

 6. Compare original provision of S. 7 as introduced in the Senate: "Any person adversely affected by any agency action shall be entitled to judicial review thereof in accordance with this section."

 7. See section 9 of the Securities Act (15 U.S.C. 77i), "any person aggrieved"; section 402 (b) (2) of the Communications Act (46 U.S.C. 402), "person aggrieved or whose interests are adversely affected"; section 1006 of the Civil Aeronautics Act (49 U.S.C. 649), "person disclosing a substantial interest in such order".

 8. See American Stevedores, Inc. v. Porello, 339 U.S. 446 (1947).

 9. See section 5 (c) of the Federal Trade Commission Act (15 U.S.C. 45 (c)); section 9 of the Securities Act (15 U.S.C. 77i); and section 701 of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 371 (f)).

 10. "The expression 'special statutory review' means not only special review proceedings wholly created by statute, but so-called common-law forms referred to and adopted by other statutes as the appropriate mode of review in given cases." Sen. Rep. p. 26; H.R. Rep. p. 42 (Sen. Doc. pp. 212, 276).

 11. For other examples, see 28 U.S.C. 43 for venue of suits to enjoin orders of the Interstate Commerce Commission, section 1006 (b) of the Civil Aeronautics Act (49 U.S.C. 646 (b)), and section 21 of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 921).

 12. The Senate Committee changed the last phrase of the provision from "provided by statute" to "provided by law". See also Senate Comparative Print, June 1945, p. 18 (Sen. Doc. P. 37), stating that "The second sentence states the present rule as to enforcement proceedings." See Representative Walter's statement to the House, 92 Cong. Rec. 5654 (Sen. Doc. p. 369): "These provisions summarize the situation as it is now generally understood. The section does not disturb special proceedings which Congress has provided, nor does it disturb the venue arrangements under existing law."

 13. See section 204 (d) of the Emergency Price Control Act of 1942.

 14. See also Walling v. Cohen. 48 F. Supp. 859 (E.D. Pa. 1943), affirmed 140 F. 2d 453 (C.C.A. 3, 1944) under the Fair Labor Standards Act, and Piuma v. United States, 126 F. 2d 601 (C.C.A. 9, 1942). certiorari denied, 317 U.S. 637, under the Federal Trade Commission Act.

 15. the Attorney General's memorandum to the Senate Committee, he stated that "'Courts' includes the Tax Court, Court of Customs and Patent Appeals, the Court of Claims, and similar courts. This act does not apply to their procedure nor affect the requirement of resort thereto." Sen. Rep. p. 38 (Sen. Doc. p. 224).

 16. See Final Report, pp. 85-86.

 17. This conclusion is corollary to the following statement made with respect to section 10 (d): This section permits either agencies or courts, if the proper showing be made, to maintain the status quo. While it would not permit a court to grant an initial license, it provides intermediate judicial relief for every other situation in order to make judicial review effective." Sen. Rep. p. 27, H.R. Rep. p. 43 (Sen. Doc. pp. 213, 277).

 18. This distinction and the Congressional intent with respect to it are clearly illustrated by the fact that when S. 7 was introduced in the Senate, it read: "to the extent necessary to preserve status or rights, afford an opportunity for judicial review of any question of law or prevent irreparable injury." [Emphasis supplied)

 19. This was the holding in Avon Dairy Company v. Eisaman, 69 F Supp. 500 (N. D. Ohio, 1946).

 20. See also Rule 65 of the Federal Rules of Civil Procedure.

 21. quot;Subsection (e), therefore, seeks merely to restate the several categories of law subject to judicial review."

 22. Vajtauer v. Commissioner, 273 U.S. 103, 106 (1927) and Bridges v. Wixon, 326 U.S. 135, 149 (1945) (deportation). In deportation proceedings, a judicial trial de novo may be had on the issue of citizenship. Kessler v. Strecker, 307 U.S. 22, 35 (1939). See Farley v. Simmons, 99 F. 2d 343, 347 (App. D.C. 1938) certiorari denied, 305 U.S. 651, for review of mail fraud orders; also Senate Hearings, (1941) p. 59.

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