Reviewability of Agency Decisions

Question 1

Under APA 702 and 704, there is a strong presumption toward allowing judicial review of administrative decisions. What are the exceptions?

Answer 1

1) Statute precludes judicial review;

2) Agency action is committed to agency discretion by law.

Question 2

Does the APA have a presumption toward allowing review or not allowing review?

Answer 2

The APA has a strong presumption toward allowing judicial review of judicial decisions.

Question 3

Can a court compel an agency to act under the APA?

Answer 3

Yes, under APA 706(1), the Court can compel an agency to act if they fail to act in accordance with a statutory requirement.

Question 4

What does Congress have to do to preclude judicial review of an administrative decision?

Answer 4

They must be clear and unambiguous in their intent to preclude review.

Question 5

What does an agencies prosecution discretion mean?

Answer 5

Enforcement actions are presumptively unreviewable by a court. Whom to charge with enforcement actions is left up to agency discretion and the challenging party must overcome that presumption.

Question 6

When an agency has a requirement to act, when must they act?

Answer 6

When an agency has a requirement to act, they cannot act with undue delay.

Question 7

What must a delay be to be excessive?

Answer 7

The delay must be excessive. This is an uncertain term. 9 years was considered excessive, but that is the only standard available.

Question 8

Can resource allocation be reviewed?

Answer 8

The allocation of funds has the presumption of unreviewability. Agencies have the discretion in a lump sum allocation to choose their priorities and give funds accordingly.

Question 9

What is reviewable under the following:

1) 701(a)(1): Statutory Preclusion
2) 702(a)(2)): Committed to Agency Discretion by Law

Answer 9

1a) Reviewable –> Constitutional Issues
1b) Unreviewable –> Everything Else

2a) Reviewable –> Standard to apply
2b) Unreviewable –> No Standard to apply