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5 USC CHAPTER 7 - JUDICIAL REVIEW 01/06/03

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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART I - THE AGENCIES GENERALLY

CHAPTER 7 - JUDICIAL REVIEW

.

-HEAD-

CHAPTER 7 - JUDICIAL REVIEW

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Sec.

701. Application; definitions.

702. Right of review.

703. Form and venue of proceeding.

704. Actions reviewable.

705. Relief pending review.

706. Scope of review.

SHORT TITLE

The provisions of sections 551 to 559 of this title and this

chapter were originally enacted by act June 11, 1946, ch. 423, 60

Stat. 237, popularly known as the ''Administrative Procedure Act''.

That Act was repealed as part of the general revision of this title

by Pub. L. 89-554 and its provisions incorporated into sections 551

to 559 of this title and this chapter.

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CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 559, 611, 8902, 8902a of

this title; title 2 sections 501, 502; title 7 sections 136a, 1642,

6999, 7996; title 8 section 1421; title 10 section 2409; title 12

sections 1441a, 1467a, 1786, 1787, 1815, 1818, 1821, 1959, 2266,

2268, 4583, 4634; title 15 sections 57a, 78dd-1, 78dd-2, 266, 687e,

1193, 1715, 2060, 2603, 2618, 2622, 3416, 5623, 6208; title 16

sections 460aa-3, 470q, 823b, 1374, 1536, 1855, 2404, 3636; title

17 sections 701, 908; title 18 sections 843, 3625; title 19 section

1337; title 20 sections 107d-2, 1683; title 21 sections 350b, 360e,

360g, 360kk; title 22 sections 277d-24, 1623, 1645n, 3794, 4140;

title 23 sections 134, 135; title 25 sections 954, 1776b, 2713,

2714; title 26 section 9041; title 28 section 2467; title 29

sections 214, 727, 792, 1137; title 30 sections 956, 1411, 1415,

1416; title 33 sections 524, 597; title 35 sections 135, 154; title

38 section 502; title 39 sections 404, 410, 3001, 3008, 3012, 3603;

title 41 sections 43a, 265; title 42 sections 290kk-1, 300j-6,

300j-9, 1395h, 1395oo, 1436c, 1437c-1, 2000d-2, 2022, 2231, 2236,

2239, 2282a, 2286f, 4104, 5405, 5851, 6105, 6303, 6306, 6973, 6976,

7276, 7525, 7607, 7622, 7920, 8412, 8433, 8441, 10132, 10155,

10244; title 44 section 2203; title 45 sections 1116, 1212; title

47 sections 303, 305, 310, 409, 1103; title 49 sections 5303,

31102, 31141, 42121, 70110; title 50 sections 835, 2011; title 50

App. sections 463, 2159, 2412.

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5 USC Sec. 701 01/06/03

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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART I - THE AGENCIES GENERALLY

CHAPTER 7 - JUDICIAL REVIEW

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Sec. 701. Application; definitions

-STATUTE-

(a) This chapter applies, according to the provisions thereof,

except to the extent that -

(1) statutes preclude judicial review; or

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

(b) For the purpose of this chapter -

(1) ''agency'' means each authority of the Government of the

United States, whether or not it is within or subject to review

by another agency, but does not include -

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of the

United States;

(D) the government of the District of Columbia;

(E) agencies composed of representatives of the parties or of

representatives of organizations of the parties to the disputes

determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of war

or in occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743, and

1744 of title 12; chapter 2 of title 41; subchapter II of

chapter 471 of title 49; or sections 1884, 1891-1902, and

former section 1641(b)(2), of title 50, appendix; and

(2) ''person'', ''rule'', ''order'', ''license'', ''sanction'',

''relief'', and ''agency action'' have the meanings given them by

section 551 of this title.

-SOURCE-

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 103-272, Sec.

5(a), July 5, 1994, 108 Stat. 1373.)

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(a) 5 U.S.C. 1009 June 11, 1946, ch.

(introductory 324, Sec. 10

clause). (introductory

clause), 60 Stat.

243.

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

In subsection (a), the words ''This chapter applies, according to

the provisions thereof,'' are added to avoid the necessity of

repeating the introductory clause of former section 1009 in

sections 702-706.

Subsection (b) is added on authority of section 2 of the Act of

June 11, 1946, ch. 324, 60 Stat. 237, as amended, which is carried

into section 551 of this title.

In subsection (b)(1)(G), the words ''or naval'' are omitted as

included in ''military''.

In subsection (b)(1)(H), the words ''functions which by law

expire on the termination of present hostilities, within any fixed

period thereafter, or before July 1, 1947'' are omitted as

executed. Reference to the ''Selective Training and Service Act of

1940'' is omitted as that Act expired on Mar. 31, 1947. Reference

to the ''Sugar Control Extension Act of 1947'' is omitted as that

Act expired on Mar. 31, 1948. References to the ''Housing and Rent

Act of 1947, as amended'' and the ''Veterans' Emergency Housing Act

of 1946'' have been consolidated as they are related. The

reference to former section 1641(b)(2) of title 50, appendix, is

retained notwithstanding its repeal by Sec. 111(a)(1) of the Act of

Sept. 21, 1961, Pub. L. 87-256, 75 Stat. 538, since Sec. 111(c) of

the Act provides that a reference in other Acts to a provision of

law repealed by Sec. 111(a) shall be considered to be a reference

to the appropriate provisions of Pub. L. 87-256.

Standard changes are made to conform with the definitions

applicable and the style of this title as outlined in the preface

to the report.

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REFERENCES IN TEXT

Sections 1891-1902 of title 50, appendix, referred to in subsec.

(b)(1)(H), were omitted from the Code as executed.

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AMENDMENTS

1994 - Subsec. (b)(1)(H). Pub. L. 103-272 substituted

''subchapter II of chapter 471 of title 49; or sections'' for ''or

sections 1622,''.

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SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 2 sections 501, 502; title 7

sections 1508, 2143; title 16 section 839f; title 18 sections 843,

3625; title 20 section 1683; title 25 section 954; title 30 section

956; title 41 section 422; title 42 sections 247d-6, 5405, 6105,

6976, 14922; title 50 App. section 2412.

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5 USC Sec. 702 01/06/03

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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART I - THE AGENCIES GENERALLY

CHAPTER 7 - JUDICIAL REVIEW

-HEAD-

Sec. 702. Right of review

-STATUTE-

A person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the meaning

of a relevant statute, is entitled to judicial review thereof. An

action in a court of the United States seeking relief other than

money damages and stating a claim that an agency or an officer or

employee thereof acted or failed to act in an official capacity or

under color of legal authority shall not be dismissed nor relief

therein be denied on the ground that it is against the United

States or that the United States is an indispensable party. The

United States may be named as a defendant in any such action, and a

judgment or decree may be entered against the United States:

Provided, That any mandatory or injunctive decree shall specify the

Federal officer or officers (by name or by title), and their

successors in office, personally responsible for compliance.

Nothing herein (1) affects other limitations on judicial review or

the power or duty of the court to dismiss any action or deny relief

on any other appropriate legal or equitable ground; or (2) confers

authority to grant relief if any other statute that grants consent

to suit expressly or impliedly forbids the relief which is sought.

-SOURCE-

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94-574, Sec.

1, Oct. 21, 1976, 90 Stat. 2721.)

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5 U.S.C. 1009(a). June 11, 1946, ch.

324, Sec. 10(a), 60

Stat. 243.

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

Standard changes are made to conform with the definitions

applicable and the style of this title as outlined in the preface

to the report.

AMENDMENTS

1976 - Pub. L. 94-574 removed the defense of sovereign immunity

as a bar to judicial review of Federal administrative action

otherwise subject to judicial review.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 2 sections 501, 502; title 7

sections 2143, 8401; title 16 section 839f; title 18 sections 843,

3625; title 19 section 1677c; title 21 sections 334, 1906; title 25

section 954; title 28 section 2631; title 41 section 422; title 42

sections 262a, 5405; title 43 section 1337; title 50 App. sections

16, 2412.

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5 USC Sec. 703 01/06/03

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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART I - THE AGENCIES GENERALLY

CHAPTER 7 - JUDICIAL REVIEW

-HEAD-

Sec. 703. Form and venue of proceeding

-STATUTE-

The form of proceeding for judicial review is the special

statutory review proceeding relevant to the subject matter in a

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 a court of competent jurisdiction.

If no special statutory review proceeding is applicable, the action

for judicial review may be brought against the United States, the

agency by its official title, or the appropriate officer. 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.

-SOURCE-

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94-574, Sec.

1, Oct. 21, 1976, 90 Stat. 2721.)

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5 U.S.C. 1009(b). June 11, 1946, ch.

324, Sec. 10(b), 60

Stat. 243.

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

Standard changes are made to conform with the definitions

applicable and the style of this title as outlined in the preface

to the report.

AMENDMENTS

1976 - Pub. L. 94-574 provided that if no special statutory

review proceeding is applicable, the action for judicial review may

be brought against the United States, the agency by its official

title, or the appropriate officer as defendant.

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SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 2 sections 501, 502; title 7

section 2143; title 16 section 839f; title 18 sections 843, 3625;

title 25 section 954; title 41 section 422; title 42 section 5405;

title 50 App. section 2412.

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5 USC Sec. 704 01/06/03

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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART I - THE AGENCIES GENERALLY

CHAPTER 7 - JUDICIAL REVIEW

-HEAD-

Sec. 704. Actions reviewable

-STATUTE-

Agency action made reviewable by statute and final agency action

for which there is no other adequate remedy in a court are subject

to judicial review. A preliminary, procedural, or intermediate

agency action or ruling not directly reviewable is subject to

review on the review of the final agency action. Except as

otherwise expressly required by statute, agency action otherwise

final is final for the purposes of this section whether or not

there has been presented or determined an application for a

declaratory order, for any form of reconsideration, or, unless the

agency otherwise requires by rule and provides that the action

meanwhile is inoperative, for an appeal to superior agency

authority.

-SOURCE-

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392.)

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5 U.S.C. 1009(c). June 11, 1946, ch.

324, Sec. 10(c), 60

Stat. 243.

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

Standard changes are made to conform with the definitions

applicable and the style of this title as outlined in the preface

of this report.

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SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 2 sections 501, 502; title 7

section 2143; title 15 sections 78l, 78s, 78ccc, 7214; title 16

section 839f; title 18 sections 843, 3625; title 25 section 954;

title 41 section 422; title 42 sections 5405, 7174, 7194; title 50

App. section 2412.

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5 USC Sec. 705 01/06/03

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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART I - THE AGENCIES GENERALLY

CHAPTER 7 - JUDICIAL REVIEW

-HEAD-

Sec. 705. Relief pending review

-STATUTE-

When an agency finds that justice so requires, it may postpone

the effective date of action taken by it, pending judicial review.

On such conditions as may be required and to the extent necessary

to prevent irreparable injury, the reviewing court, including the

court to which a case may be taken on appeal from or on application

for certiorari or other writ to a reviewing court, may issue all

necessary and appropriate process to postpone the effective date of

an agency action or to preserve status or rights pending conclusion

of the review proceedings.

-SOURCE-

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.)

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5 U.S.C. 1009(d). June 11, 1946, ch.

324, Sec. 10(d), 60

Stat. 243.

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

Standard changes are made to conform with the definitions

applicable and the style of this title as outlined in the preface

of this report.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 2 sections 501, 502; title 7

section 2143; title 15 sections 78y, 1262, 1474, 3416; title 16

sections 839f, 1855, 3636; title 18 sections 843, 3625; title 25

section 954; title 41 section 422; title 42 sections 5405, 7172;

title 50 App. section 2412.

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5 USC Sec. 706 01/06/03

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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART I - THE AGENCIES GENERALLY

CHAPTER 7 - JUDICIAL REVIEW

-HEAD-

Sec. 706. Scope of review

-STATUTE-

To the extent necessary to decision and when 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 an agency action. The

reviewing court shall -

(1) compel agency action unlawfully withheld or unreasonably

delayed; and

(2) hold unlawful and set aside agency action, findings, and

conclusions found to be -

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or

immunity;

(C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to

sections 556 and 557 of this title or otherwise reviewed on the

record of an agency hearing provided by statute; or

(F) 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 those parts of it cited by a party, and due account

shall be taken of the rule of prejudicial error.

-SOURCE-

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.)

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5 U.S.C. 1009(e). June 11, 1946, ch.

324, Sec. 10(e), 60

Stat. 243.

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

Standard changes are made to conform with the definitions

applicable and the style of this title as outlined in the preface

of this report.

ABBREVIATION OF RECORD

Pub. L. 85-791, Aug. 28, 1958, 72 Stat. 941, which authorized

abbreviation of record on review or enforcement of orders of

administrative agencies and review on the original papers,

provided, in section 35 thereof, that: ''This Act (enacting section

2112 of Title 28, Judiciary and Judicial Procedure, and amending

sections 1036 and 1037(c) of former Title 5 (now sections 2346 and

2347(c) of Title 28), sections 8, 9, 193(c), 194(b)-(d), (h),

1115(c), 1599(c), 1600, and 1601 of Title 7, Agriculture, section

1848 of Title 12, Banks and Banking, sections 21, 45(b)-(d),

77i(a), 78y(a), 79x(a), 80a-42(a), 80b-13(a), and 717r(a), (b) of

Title 15. Commerce and Trade, section 825l(a), (b) of Title 16,

Conservation, sections 81r(c) and 1641(b) of Title 19, Customs

Duties, section 277(b) of Title 20, Education, sections 346a(i)(2),

(3), 371(f)(1), (3) of Title 21, Food and Drugs, section 1631f(b)

of Title 22, Foreign Relations and Intercourse, section 204(h),

Title 27, Intoxicating Liquors, sections 160(d)-(f) and 210(a) of

Title 29, Labor, section 576 of former Title 39, The Postal

Service, section 291j(b)(1), (2) of Title 42, Public Health and

Welfare, section 315(f) of Title 45, Railroads, section 1181(b) of

Title 46, Appendix, Shipping, section 402(d) of Title 47,

Telegraphs, Telephones, and Radiotelegraphs, section 646(c) of

former Title 49, Transportation, and sections 793(a), 820(e),

821(c), (d) of Title 50, War and National Defense) shall not be

construed to repeal or modify any provision of the Administrative

Procedure Act.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7123 of this title; title

2 sections 501, 502, 1409, 1571; title 7 sections 252, 2143; title

8 section 1182; title 10 section 1508; title 11 section 1172; title

12 sections 1701q-1, 1723i, 1735f-14, 1735f-15, 3105; title 14

section 425; title 15 sections 57a, 78y, 1262, 1474, 2618, 5408,

6503, 6751; title 16 sections 773f, 839f, 973f, 1379, 1855, 1858,

2437, 3142, 3636, 5010, 5507; title 18 sections 843, 3625; title 19

section 1337; title 22 section 4140; title 25 section 954; title 28

sections 1491, 2640, 3902; title 29 sections 727, 1813, 1853; title

30 sections 956, 1462; title 39 section 3628; title 41 section 422;

title 42 sections 300gg-22, 610, 3545, 5405, 5919, 6976, 7607,

9152, 14922, 14924; title 45 sections 726, 904, 915, 1105; title 47

section 402; title 49 sections 20104, 32904; title 50 App. section

2412.

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