[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]


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 Notices
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  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.

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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\
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    \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.
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    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\
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    \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).
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    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.
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    \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).
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    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\
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    \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.
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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.
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    \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.
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    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.
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    \15\ Fed. R. Civ. P. 3.
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    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.
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    \16\ Siegel, supra note 6, at 40-41.
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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.
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    \17\ Id. at 35-37.
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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.
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    \18\ Id. at 41-45.
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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.
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    \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.
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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]
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