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The APA Gets No Respect

6 January 2022


Courts have been all over the mapThe Administrative Procedure Act was supposed to be, according to a chief sponsor, “a bill of rights” for those regulated by federal agencies. But a bill of rights is worthless if ignored, and in many cases important provisions of the APA are ignored, not just by lawyers and scholars but by courts.Perhaps the most spectacular example of this is the Supreme Court’s creation of “Chevron deference” in its 1984 decision in Chevron v. Natural Resources Defense Council. The Court held that federal agencies’ interpretations of the statutes they administer prevail if “reasonable,” even if a court thinks that they are wrong. Law professor Kenneth Culp Davis, often referred to as the dean of administrative law scholars and a drafter of the APA, wrote that Chevron “ignored and violated the [APA’s] entirely clear provision” on judicial review.Other examples of courts ignoring the APA include (1) crafting a doctrine of “exhaustion” of administrative remedies — that is, requiring one to go through all levels of administrative appeal before going to court — that contradicts the APA exhaustion provision, (2) using a judge‐​made “clear error” standard rather than the APA’s “substantial evidence” standard when challenging a federal grant of patent or trademark, and (3) interposing a judge‐​made “prudential ripeness” doctrine — that is, declining to review an agency ruling until the court thinks that the proper time for review has arrived — in place of the more liberal APA provisions on when aggrieved persons may seek judicial review.Can the accused challenge? / This writer was recently involved in another instance of the courts ignoring an APA provision, this time by the D.C. Circuit. For many decades, courts have wrestled with the following question: If a statutory provision says that one may seek, within a certain number of days, pre‐​enforcement review of the validity of a regulation, is that period exclusive? Or may one wait to challenge the regulation until one is accused of violating it?Courts have been all over the map on this question, struggling to weigh various factors. The D.C. Circuit, for example, invented this doctrine, later crystallized in its 1994 decision in JEM Broadcasting v. FCC: Where the opportunity provided by a statute for pre‐​enforcement review of a regulation’s validity is “adequate,” that period is exclusive as to “procedural” invalidity arguments but not exclusive as to “substantive” invalidity arguments.But in all the decades that appellate courts have wrestled with this question, never once have they recognized that a provision of the APA speaks directly to it, and in a manner inconsistent with their judge‐​made doctrines. The third sentence of APA § 703 states: “Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.” The provision means, in essence, that when one is accused of violating an agency regulation, one may challenge its validity unless the pre‐​enforcement challenge avenue is not only “adequate” but “exclusive.” JEM Broadcasting, in contrast, does not require that the pre‐​enforcement provision state that it is exclusive.One would think that courts, of all institutions, would assiduously pay attention to such a statute if it were cited prominently to them and adjust their doctrines accordingly. A recent case indicates that not all courts will. In an Occupational Safety and Health Administration case in which this writer was counsel, an invalidity question came before the D.C. Circuit. The court requested supplemental briefs on whether JEM Broadcasting had foreclosed it. The defendant, an employer, responded that, among other things, APA § 703 “directly addresses this issue” and that, unlike JEM Broadcasting, the mere adequacy of a pre‐​enforcement challenge provision “cannot alone prove that it is ‘exclusive’ — or ‘exclusive’ would … be effectively read out of the statute.” The employer acknowledged that its argument “treads a different path than the doctrine developed” in circuit precedents but observed that they had “not indicate[d] … that this Court [had] examined this matter in light of APA section 703.”Although the court stated that it was resolving the issue in favor of the employer on the basis of clear legislative history in the Occupational Safety and Health Act, the court indicated that its holding might not apply to all OSHA standards. That indicator directly contradicts APA § 703’s third sentence, which despite its prominent mention by the employer, the court never cited.Courts are not the only institutions to have ignored APA § 703’s third sentence. Scholars and even the Administrative Conference of the United States (ACUS) have been guilty of this, too. In 1982, ACUS adopted a recommendation on the subject of exclusivity of pre‐​enforcement challenge provisions that failed to mention APA § 703’s third sentence. The recommendation was based on a study by a prominent administrative law scholar that briefly mentioned the provision but inaccurately: it stated that APA § 703 “specifically recognizes … that enforcement review can be deemed precluded if an adequate opportunity for pre‐​enforcement review is presented.” That is inaccurate because it ignores § 703’s other key criterion: exclusivity.Despite these decisions, counsel has the responsibility to continue urging courts to apply the rights provided by the APA. Hence, counsel must be familiar with the APA and cite it prominently, lest the rights provided by the APA fall into desuetude.


Arthur G. Sapper
Ogletree Deakins