An Introduction to Judicial Review of Federal Agency Action
Congressional research reportSep 12, 2025
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An Introduction to Judicial Review of Federal
Agency Action
Updated September 12, 2025
Congressional Research Service
https://crsreports.congress.gov
R44699
SUMMARY
An Introduction to Judicial Review of Federal
Agency Action
Congress has created numerous federal agencies charged with carrying out a broad array of
delegated statutory responsibilities. These agencies administer their delegated authority in a
variety of ways, including by promulgating rules, conducting adjudications, and bringing
enforcement actions against parties for violating statutes or regulations. In addition to delegating
authority to these agencies, Congress has also enacted statutes, such as the Administrative
Procedure Act (APA), 5 U.S.C. §§ 701–706, authorizing federal courts to review agency actions
to ensure agencies conduct their business lawfully. Thus, in many circumstances, individuals
aggrieved by agency action may bring claims to federal court for redress.
R44699
September 12, 2025
Daniel T. Shedd
Legislative Attorney
Jared P. Cole
Legislative Attorney
Not all agency actions are subject to judicial review. Whether judicial review of agency action is available in federal court
turns on several factors. Courts must possess statutory jurisdiction to adjudicate a lawsuit, and plaintiffs generally must rely
on a cause of action that allows a court to grant legal relief. Further, Article III of the Constitution limits the judicial power to
adjudicating “cases” or “controversies.” Thus, the justiciability doctrines of standing, ripeness, and mootness must be
satisfied for a party’s challenge to proceed. For suits brought under the APA, courts may only review final agency action that
is not precluded from review by another statute or legally committed to the agency’s discretion.
If the prerequisites for judicial review are met, a party may challenge agency action under the APA. That law directs
reviewing courts to “compel agency action unlawfully withheld or unreasonably delayed” and to “hold unlawful and set aside
agency action, findings, and conclusions” that violate the law or are otherwise “arbitrary and capricious.”
Pursuant to this mandate, courts can review agency action in a number of contexts. Courts can examine the statutory
authority for an agency’s action and invalidate agency action that exceeds these limits. In addition, a court may examine an
agency’s discretionary decisions to ensure they are reasonable and adequately explained. Finally, courts may also review an
agency’s compliance with statutory and regulatory procedural requirements, such as the APA’s notice-and-comment
rulemaking procedures.
This report offers an overview of issues concerning the justiciability of challenges to agency actions and the scope of review
under the APA.
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An Introduction to Judicial Review of Federal Agency Action
Contents
Requirements for Judicial Review................................................................................................... 2
Statutory Jurisdiction ................................................................................................................ 2
Subject-Matter Jurisdiction ................................................................................................. 3
Sovereign Immunity............................................................................................................ 3
Cause of Action ......................................................................................................................... 5
Constitutional and Prudential Limits on Federal Court Jurisdiction ......................................... 6
Standing .............................................................................................................................. 6
Timing of Judicial Review .................................................................................................. 7
APA-Specific Requirements.................................................................................................... 12
Review of “Final Agency Action” .................................................................................... 12
Statutory Preclusion of Review ........................................................................................ 14
Committed to Agency Discretion...................................................................................... 15
The Scope of Review Under the APA ........................................................................................... 16
Review of an Agency’s Interpretation of Statutory Authority ................................................. 16
Chevron Deference and Skidmore Weight ........................................................................ 17
Loper Bright Enterprises v. Raimondo ............................................................................. 18
Major Questions Doctrine ................................................................................................. 20
Review of Agency Interpretations of Regulations .................................................................. 21
Arbitrary-and-Capricious Review ........................................................................................... 23
Review of Compliance with Procedural Requirements .......................................................... 26
Conclusion ..................................................................................................................................... 27
Contacts
Author Information........................................................................................................................ 28
Congressional Research Service
An Introduction to Judicial Review of Federal Agency Action
ongress has created numerous federal agencies charged with carrying out a broad array of
delegated statutory responsibilities.1 Agencies administer their delegated authority in a
variety of ways, including by promulgating rules that bind the public,2 bringing
enforcement actions against parties for violating a statute or regulation,3 and determining whether
to grant a benefit4 or license.5 These agency actions can have a significant impact on individuals
and the public at large. Therefore, Congress has authorized courts, under certain circumstances, to
review agency action to ensure agency compliance with the law.6
C
The Administrative Procedure Act (APA) is the most prominent statutory vehicle for challenging
the actions of a federal agency.7 Enacted in 1946 following the expansion of the administrative
state during the New Deal era, the statute represents the first government-wide attempt to
“systematize” the actions of federal agencies.8 In addition to imposing a set of default procedural
requirements for agency rulemaking and adjudication proceedings,9 the APA provides for judicial
review of agency conduct.10 Courts may review agency action to ensure that agencies act within
the scope of their delegated authority, that agency decisions are reasonable and adequately
explained, and that an agency has complied with all applicable procedural requirements.11
To bring a claim in federal court, a plaintiff must satisfy certain prerequisites. Federal courts are
courts of limited jurisdiction—they must adhere to limits placed on their authority by Congress
and the Constitution.12 Article III of the Constitution limits the judicial power to adjudicating
“cases” or “controversies.”13 Thus, any case brought to federal court must satisfy the justiciability
doctrines of standing, ripeness, and mootness to proceed. Further, Congress must provide the
1 Although Congress’s authority to create federal agencies is not explicitly mentioned in the Constitution, its power to
do so is well established. See, e.g., Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010) (“No
one doubts Congress’s power to create a vast and varied federal bureaucracy.”).
2 See, e.g., 38 U.S.C. § 501(a) (“The Secretary [of the Department of Veterans Affairs] has authority to prescribe all
rules and regulations which are necessary or appropriate to carry out the laws administered by the Department . . . .”).
For a discussion on agency rulemaking, see CRS In Focus IF10003, An Overview of Federal Regulations and the
Rulemaking Process, by Maeve P. Carey (2021).
3 See, e.g., Pierce v. SEC, 786 F.3d 1027, 1031 (D.C. Cir. 2015) (denying an individual’s petition for review of
enforcement actions brought by the Securities and Exchange Commission). But see SEC v. Jarkesy, 603 U.S. 109, 125
(2024) (ruling that defendants are entitled to a jury trial when an agency seeks to impose certain civil monetary
penalties).
4 See, e.g., 42 U.S.C. § 423 (authorizing the Social Security Administration to pay disability insurance benefits to
certain individuals).
5 See, e.g., 16 U.S.C. § 836 (authorizing Federal Energy Regulatory Commission to issue license for construction of a
power project).
6 See, e.g., 5 U.S.C. § 706.
7 Id. §§ 701–706. For a further discussion of judicial review under the APA, see CRS Legal Sidebar LSB10558,
Judicial Review Under the Administrative Procedure Act (APA), by Jonathan M. Gaffney (2024).
8 See GARY LAWSON, FEDERAL ADMINISTRATIVE LAW 202 (2009). See generally Kathryn E. Kovacs, Superstatute
Theory and Administrative Common Law, 90 IND. L.J. 1207 (2015) (“The APA has taken on quasi-constitutional
status.”).
9 5 U.S.C. §§ 553–558
10 Id. §§ 701–706.
11 Id. § 706.
12 See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978) (“It is a fundamental precept that federal
courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by
Congress, must be neither disregarded nor evaded.”).
13 Id.; U.S. CONST. art. III, § 2, cl. 1. See Cong. Rsch. Serv., Overview of Cases or Controversies, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C1-1/ALDE_00013375/ (last visited Sept. 11,
2025).
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court with subject matter jurisdiction to hear the case, and a plaintiff must have a cause of action
to seek redress. The circumstances under which a federal court will review agency actions thus
involve questions of statutory and constitutional law.
The report opens with a discussion of the threshold requirements for seeking judicial review of
agency action in federal court.14 It then outlines the scope of review authorized by the APA.15 It
explains how courts review agency actions to ensure they comply with statutory authority,16 as
well as the standards employed in the review of an agency’s discretionary decisions.17 The report
concludes with a brief examination of judicial review of agency compliance with statutorily
prescribed procedural requirements.18
Requirements for Judicial Review
Not every agency action is subject to judicial review. Whether judicial review of agency action is
available in federal court turns on several factors, including constitutional,19 prudential,20 and
statutory21 considerations. Courts must possess statutory jurisdiction to adjudicate a lawsuit, and
plaintiffs must generally rely on a cause of action that allows a court to grant legal relief. Disputes
must also present “cases” or “controversies” that satisfy the requirements of Article III of the
Constitution. Finally, a suit must be presented to a court at the proper time for judicial review, in
that it must be ripe for review and not moot.
Statutory Jurisdiction
The federal courts are courts of limited jurisdiction.22 Their authority is restricted to matters
entrusted to them by Congress.23 Consequently, to adjudicate a case, a statute must bestow subject
14 See infra “Requirements for Judicial Review.”
15 See infra “The Scope of Review Under the .”
16 See infra “Review of an Agency’s Interpretation of Statutory Authority.”
17 See infra “Arbitrary-and-Capricious Review”
18 See infra “Review of Compliance with Procedural Requirements.” This report does not describe every circumstance
in which an agency action may be challenged. For example, it does not address the Freedom of Information Act,
5 U.S.C. §§ 552–552b, or common-law suits for damages against federal officials acting in their individual capacity,
see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In addition, numerous
issues relevant to federal court jurisdiction are not discussed, such as suits against state officers under 42 U.S.C. § 1983
and suits between private citizens pursuant to the federal courts’ diversity jurisdiction, U.S. CONST. art. III, § 2, cl. 1.
19 U.S. CONST. art. III, § 2, cl. 1; see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he core component
of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.”); United Pub.
Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947) (“As is well known the federal courts established pursuant
to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues ‘concrete
legal issues, presented in actual cases, not abstractions’ are requisite.”) (quoting United States v. Appalachian Elec.
Power Co., 311 U.S. 377, 423 (1940), superseded by, Rapanos v. United States, 547 U.S. 715 (2006) (footnotes
omitted).
20 See Bennett v. Spear, 520 U.S. 154, 162 (1997) (“In addition to the immutable requirements of Article III, ‘the
federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.’”) (quoting
Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 474 (1982).
21 See, e.g., 5 U.S.C. § 704 (allowing judicial review of administrative action under the APA only when such action is
“final”).
22 Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978); In re Madison Guar. Sav. & Loan Ass’n, 173 F.3d
866, 868 (D.C. Cir. 1999).
23 Bowles v. Russell, 551 U.S. 205, 212–13 (2007) (“Within constitutional bounds, Congress decides what cases the
federal courts have jurisdiction to consider.”). For a discussion on federal court jurisdiction, see CRS Report R47641,
Federal and State Courts: Structure and Interaction, by Joanna R. Lampe and Laura Deal (2023).
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matter jurisdiction in a federal court over a particular claim.24 In addition, suits against the United
States are barred absent a statutory waiver of sovereign immunity.25 This section of the report
provides an introduction to these matters in the context of challenging administrative actions.
Subject-Matter Jurisdiction
As a threshold matter, courts must possess subject-matter jurisdiction over a claim to hear a
case.26 Subject-matter jurisdiction refers to a court’s “power” to hear a case.27 Although the APA
does not provide subject-matter jurisdiction,28 a separate statute, 28 U.S.C. § 1331, bestows upon
federal district courts “original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.”29 This general federal-question jurisdiction authorizes
federal courts to hear claims arising under the APA as well as nonstatutory and constitutional
claims.30 A variety of other statutes bestow jurisdiction in particular courts to review certain
claims. For example, the Hobbs Act (Administrative Orders Review Act) establishes exclusive
subject-matter jurisdiction for pre-enforcement review of certain agency orders in the U.S. Courts
of Appeals.31 Still other statutes specify that specific circuit courts have exclusive subject-matter
jurisdiction over certain claims.32
Sovereign Immunity
The doctrine of sovereign immunity shields the United States from suit unless Congress has
waived immunity by statute.33 Absent such a waiver, federal courts lack jurisdiction over lawsuits
24 See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).
25 See Loeffler v. Frank, 486 U.S. 549, 554 (1988).
26 See, e.g., United States v. Cotton, 535 U.S. 625, 630 (2002).
27 See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (“Moreover, courts, including this Court, have an independent
obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”);
Cotton, 535 U.S. at 630; Ruhrgas AG, 526 U.S. at 583.
28 Califano v. Sanders, 430 U.S. 99, 107 (1977) (“[T]he APA does not afford an implied grant of subject-matter
jurisdiction permitting federal judicial review of agency action.”).
29 28 U.S.C. § 1331.
30 Trudeau v. FTC, 456 F.3d 178, 185 (D.C. Cir. 2006) (holding that “[s]ection 1331 is an appropriate source of
jurisdiction for” APA, nonstatutory, and constitutional claims). Nonstatutory review of federal agency action is
available when an agency action is ultra vires, Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 689–90
(1949); Aid Ass’n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1173 (D.C. Cir. 2003), that is, when the agency
has plainly violated an unambiguous and mandatory legal requirement, Leedom v. Kyne, 358 U.S. 184, 188–89 (1958);
Key Med. Supply, Inc. v. Burwell, 764 F.3d 955, 962 (8th Cir. 2014). While nonstatutory claims are those suits brought
without “a specific or a general statutory review provision,” see, e.g., Chamber of Com. v. Reich, 74 F.3d 1322, 1327
(D.C. Cir. 1996); Puerto Rico v. United States, 490 F.3d 50, 59 (1st Cir. 2007), a federal statute nonetheless authorizes
subject matter jurisdiction in the federal courts, 28 U.S.C. § 1331; Trudeau, 456 F.3d at 185.
31 28 U.S.C. § 2342. In McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146, 159 (2025), the
Supreme Court held that, although the Hobbs Act provides for exclusive subject matter jurisdiction for pre-enforcement
review of the validity of certain agency orders in the federal courts of appeals, the Act does not preclude a district court
from determining the validity of an agency order in an enforcement proceeding. (“When Congress wants to bar a
district court in an enforcement proceeding from reviewing an agency’s interpretation of a statute, Congress can and
must say so.”).
32 See, e.g., 42 U.S.C. § 4915 (establishing exclusive jurisdiction in the D.C. Circuit for review of certain rules and
regulations promulgated by the Environmental Protection Agency and the Federal Aviation Administration).
33 See Martin v. United States, 145 S. Ct. 1689, 1695 (2025); Loeffler v. Frank, 486 U.S. 549, 554 (1988); Fed. Hous.
Admin. v. Burr, 309 U.S. 242, 244 (1940); Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). The application of
sovereign immunity in federal courts stems from the English common law tradition, which barred suits against the
Crown absent consent. Santana-Rosa v. United States, 335 F.3d 39, 41–42 (1st Cir. 2003) (“This notion derives from
(continued...)
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against the United States.34 A waiver of sovereign immunity will not be implied from legislative
history or the background context of a statute; rather, it must be clearly expressed in the statutory
text.35 Three primary statutes waive sovereign immunity, thereby permitting lawsuits against the
United States in federal court under certain circumstances.36 First, the APA was amended in 1976
to permit individuals aggrieved by agency action to bring suit in federal court against the United
States and government employees in their official capacity.37 This statutory waiver, however, does
not authorize money damages as a remedy.38 Second, the Federal Tort Claims Act (FTCA)
permits suits to be heard in federal court for certain torts committed by agency employees in the
course of their employment.39 In these cases, the United States is substituted as a defendant for
the employee who allegedly committed the tort.40 Unlike the APA, the FTCA permits money
damages as a remedy.41 Third, the Tucker Act permits suits against the United States for breach of
contract and certain other monetary claims that do not arise in tort.42
the British legal fiction that ‘the King can do no wrong.’” (quoting Feather v. The Queen (1865) 122 Eng. Rep. 1191,
1205, 6 B&S 257 (QB))). While the term does not appear in the Constitution, “it has always been treated as an
established doctrine” by the federal courts. United States v. Lee, 106 U.S. 196, 207 (1882).
34 United States v. Miller, 145 S. Ct. 839, 849 (2025) (“As our precedents explain, ‘[s]overeign immunity is
jurisdictional in nature’ and deprives courts of the power to hear suits against the United States absent Congress’s
express consent.” (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994))); United States v. Mitchell, 463 U.S. 206, 212
(1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a
prerequisite for jurisdiction.”).
35 Lane v. Pena, 518 U.S. 187, 192 (1996) (“A waiver of the Federal Government’s sovereign immunity must be
unequivocally expressed in statutory text . . . and will not be implied.” (citations omitted)).
36 Although less relevant after the passage of general statutes waiving the federal government’s sovereign immunity,
the Supreme Court has held that, even absent a waiver, individuals may sue government officials for prospective
injunctive relief as a result of ultra vires conduct. See, e.g., Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682,
689–90 (1949). However, “[b]ecause ultra vires review could become an easy end-run around the limitations of the
Hobbs Act and other judicial-review statutes,” the Supreme Court has “strictly limited nonstatutory ultra vires review.”
Nuclear Regul. Comm’n v. Texas, 605 U.S. 665, 681 (2025). The Court explained that nonstatutory ultra vires review
only applies “when an agency has taken action entirely ‘in excess of its delegated powers and contrary to a specific
prohibition’ in a statute.” Id. (quoting Bhd. of Ry. & S.S. Clerks, Freight Handlers, Express & Station Emps. v. Ass’n
for the Benefit of Non-Cont. Emps., 380 U.S. 650, 660 (1965)). Such review is also unavailable if aggrieved persons
have an opportunity for meaningful review pursuant to statute. Id.
37 5 U.S.C. § 702.
38 Id.; Veluchamy v. FDIC, 706 F.3d 810, 812 (7th Cir. 2013) (“But this request for substitute monetary relief
constitutes a request for “money damages,” which the APA does not authorize.”).
39 28 U.S.C. § 2679; see CRS Report R45732, The Federal Tort Claims Act (FTCA): A Legal Overview, by Michael D.
Contino and Andreas Kuersten (2023).
40 28 U.S.C. § 2679.
41 Id. §§ 1346(b), 2671–2680.
42 Id. §§ 1346, 1491; United States v. Navajo Nation, 556 U.S. 287, 290 (2009) (noting that the Tucker Act “waive[s]
sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts)”); United States v. Testan,
424 U.S. 392, 398–400 (1976) (“The Tucker Act, of course, is itself only a jurisdictional statute; it does not create any
substantive right enforceable against the United States for money damages. . . . We therefore must determine whether
the two other federal statutes that are invoked by the respondents confer a substantive right to recover money damages
from the United States for the period of their allegedly wrongful civil service classifications.”); Burkins v. United
States, 112 F.3d 444, 449 (10th Cir. 1997) (“The Tucker Act, 28 U.S.C. §§ 1346, 1491, ‘vests exclusive jurisdiction’
with the Court of Federal Claims for claims against the United States founded upon the Constitution, Acts of Congress,
executive regulations, or contracts and seeking amounts greater than $10,000.”) (quoting New Mexico v. Regan, 745
F.2d 1318, 1322 (10th Cir. 1984)).
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Cause of Action
To challenge the actions of a federal agency, a plaintiff must also demonstrate that he or she
possesses a legal right to seek judicial redress.43 A plaintiff will have a “cause of action” if he or
she “is a member of the class of litigants that may, as a matter of law, appropriately invoke the
power of the court.”44 Various statutes explicitly provide such causes of action to enforce legal
requirements against federal agencies.45 Absent a specific statutory framework creating a cause of
action, the APA provides a general cause of action for individuals aggrieved by a “final agency
action” if “there is no other adequate remedy in a court.”46
There are other, less common bases for challenges to agency actions. In limited situations, even
lacking an express statutory cause of action, individuals may seek “nonstatutory” review of an
agency action that is ultra vires.47 In addition, when a federal official owes a plaintiff a “clear
nondiscretionary duty,”48 federal district courts49 and appellate courts50 may issue mandamus
relief, which is an order compelling an official “to perform a duty owed to the plaintiff.”51
However, the remedy is to be invoked only in “extraordinary circumstances”52 when “no adequate
alternative remedy exists.”53 Finally, the Supreme Court, in Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, recognized a common law cause of action against federal officers
43 Trudeau v. FTC, 456 F.3d 178, 188–191 (D.C. Cir. 2006).
44 See Davis v. Passman, 442 U.S. 228, 239 n.18 (1979); Harold Bruff, Availability of Judicial Review, in A GUIDE TO
JUDICIAL AND POLITICAL REVIEW OF FEDERAL AGENCIES 5–6 (Michael Herz et al. eds., 2d ed. 2015).
45 See, e.g., 15 U.S.C. § 2618 (authorizing individuals to seek judicial review of rules promulgated under the Toxic
Substances Control Act); 33 U.S.C. § 1369 (authorizing interested person to seek judicial review of agency actions
taken under the Clean Water Act).
46 5 U.S.C. § 704. An agency action is defined as “the whole or a part of an agency rule, order, license, sanction, relief,
or the equivalent or denial thereof, or failure to act.” Id. § 551(13).
47 Puerto Rico v. United States, 490 F.3d 50, 59 (1st Cir. 2007) (“The basic premise behind nonstatutory review is that,
even after the passage of the APA, some residuum of power remains with the district court to review agency action that
is ultra vires.”) (quoting R.I. Dep’t of Env’t Mgmt. v. United States, 304 F.3d 31, 44 (1st Cir. 2002)); R.I. Dep’t of
Env’t Mgmt., 304 F.3d at 42 (“As a general matter, there is no statute expressly creating a cause of action against
federal officers for constitutional or federal statutory violations. Nevertheless, our courts have long recognized that
federal officers may be sued in their official capacity for prospective injunctive relief to prevent ongoing or future
infringements of federal rights. Such actions are based on the grant of general federal-question jurisdiction under 28
U.S.C. § 1331 and the inherent equity powers of the federal courts.”) (citations omitted); Chamber of Com. v. Reich, 74
F.3d 1322, 1327 (D.C. Cir. 1996) (“If a plaintiff is unable to bring his case predicated on either a specific or a general
statutory review provision, he may still be able to institute a non-statutory review action.”).
48 Heckler v. Ringer, 466 U.S. 602, 616 (1984).
49 28 U.S.C. § 1361 (authorizing mandamus relief against government officials and agencies but not the United States).
50 Id. § 1651(a).
51 Id. § 1361. Federal courts may also issue declaratory relief—a legal judgement stating the rights and obligation of
relevant parties—under the Declaratory Judgement Act. 28 U.S.C. § 2201.
52 Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980).
53 Barnhart v. Devine, 771 F.2d 1515, 1524 (D.C. Cir. 1985).
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for damages resulting from violations of constitutional rights.54 This remedy does not apply to
federal agencies.55
Constitutional and Prudential Limits on Federal Court Jurisdiction
In addition to statutory prerequisites for judicial review, certain constitutional and prudential
considerations limit when courts will entertain a suit in a case challenging agency action.
Plaintiffs must demonstrate that they have standing to challenge a federal agency’s action. They
must also bring a lawsuit at the appropriate time.
Standing
Article III of the Constitution limits the scope of federal court jurisdiction to adjudicating “cases”
and “controversies.”56 The Supreme Court has articulated several legal doctrines emanating from
Article III, as well as various prudential considerations, that further limit the circumstances under
which federal courts will adjudicate disputes regarding federal agencies, such as standing,
ripeness, and mootness.57 In particular, the doctrine of standing is a frequent barrier to plaintiffs
challenging agency action.58 The Supreme Court has expressed the important separation of
powers principles that underlie the doctrine,59 emphasizing that while the judiciary is authorized
to say what the law is,60 invalidation of congressional legislation or actions of the executive
54 403 U.S. 388 (1971). Nevertheless, even if a cause of action is available under Bivens, two important affirmative
defenses may bar federal officers from being sued. The Supreme Court has recognized that absolute civil immunity is
owed to judges, Pierson v. Ray, 386 U.S. 547, 554–55 (1967); prosecutors, Imbler v. Pachtman, 424 U.S. 409, 422–23
(1976), legislators, Tenney v. Brandhove, 341 U.S. 367, 376 (1951), and the President, Nixon v. Fitzgerald, 457 U.S.
731, 749 (1982), when such officials are acting within the scope of their discretionary duties. More generally, executive
branch officials may be absolutely immune if performing similar functions. See, e.g., Butz v. Economou, 438 U.S. 478,
512–13 (1978) (concerning officers performing adjudicatory functions). In addition, the doctrine of qualified immunity
protects federal government employees performing discretionary functions from being sued in their individual capacity
in suits for damages unless their actions violate clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S.
800, 815 (1982).
55 FDIC v. Meyer, 510 U.S. 471, 475 (1994).
56 U.S. CONST. art. III, § 2; see Massachusetts v. EPA, 549 U.S. 497, 516 (2007) (“Article III of the Constitution limits
federal-court jurisdiction to ‘Cases’ and ‘Controversies.’”).
57 See Allen v. Wright, 468 U.S. 737, 750 (1984) (“All of the doctrines that cluster about Article III—not only standing
but mootness, ripeness, political question, and the like—relate in part, and in different though overlapping ways, to an
idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential
limits to the powers of an unelected, unrepresentative judiciary in our kind of government.” (quoting Vander Jagt v.
O’Neill, 699 F.2d 1166, 1178–79 (D.C. Cir. 1983) (Bork, J., concurring))). Under the political question doctrine,
federal courts may also decline to adjudicate cases presenting questions more properly suited to resolution by the
political branches. See CRS Legal Sidebar LSB10758, The Political Question Doctrine: The Doctrine in the Modern
Era (Part 3), by Joanna R. Lampe (2022). See infra “Timing of Judicial Review” for a discussion of ripeness and
mootness.
58 See generally Erwin Chemerinsky, What's Standing After Transunion LLC v. Ramirez, 96 NYU L. REV. ONLINE 269,
272–73 (2021) (“Perhaps the most important of these [Article III] restrictions is standing to sue, which focuses on
whether the plaintiff is the proper party to bring a matter to the court for adjudication.”); Lisa Schultz Bressman,
Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. REV. 1657 (2004) (noting that the
Supreme Court has interpreted standing doctrine restrictively to bar certain suits challenging agency inactions).
59 Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (“The [standing] doctrine developed in our case law to ensure that
federal courts do not exceed their authority as it has been traditionally understood.”); Clapper v. Amnesty Int’l USA,
568 U.S. 398, 408 (2013) (“The law of Article III standing, which is built on separation-of-powers principles, serves to
prevent the judicial process from being used to usurp the powers of the political branches.”).
60 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
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branch should not be taken lightly.61 Courts must vindicate individual rights, but the judicial
power may not be harnessed into a supervisory role over federal agencies that should be reserved
for Congress.62
To satisfy the constitutional requirement of standing, a plaintiff must “demonstrate that he has
suffered ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that
the injury will likely be redressed by a favorable decision.”63 With regard to the injury, a plaintiff
must assert more than a generalized interest in governance shared by all citizens and instead must
have suffered an injury in fact or invasion of a legally protected interest that is concrete and
particularized and actual or imminent.64 For the injury to be “fairly traceable” to the defendant’s
actions, the “line of causation between the [defendant’s actions] and [the] injury” cannot be “too
attenuated.”65 Finally, it must be likely, rather than “merely speculative, that the injury will be
redressed by a favorable decision.”66 The doctrine of standing often bars suits challenging agency
action, for example, when plaintiffs seek to vindicate the public interest but personally have not
suffered a concrete injury traceable to an agency action.67
Timing of Judicial Review
A variety of statutory and constitutional considerations related to the timing of a lawsuit also
dictate whether a federal court is permitted to adjudicate a challenge to agency action. Foremost
among these are statutes of limitations and the doctrines of ripeness, mootness, and exhaustion.
61 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 473–474 (1982).
62 Allen v. Wright, 468 U.S. 737, 760 (1984).
63 Bennet v. Spear, 520 U.S. 154, 162 (1997).
64 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
65 See Allen, 468 U.S. at 752, 757–58 (holding that plaintiff lacked standing because the “line of causation between” the
IRS’s action of granting tax exemptions to some racially discriminatory schools and the plaintiff’s asserted injury of
being unable to attend a racially integrated school was “attenuated at best”).
66 Lujan, 504 U.S. at 560. In addition to constitutional standing requirements, courts have invoked a judicially
constructed doctrine of “prudential standing” to limit review of certain types of claims. This includes “the general
prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances
more appropriately addressed in the representative branches, and the requirement that a plaintiff’s complaint fall within
the zone of interests protected by the law invoked.” Allen, 468 U.S. at 751. However, in Lexmark International Inc., v.
Static Control Components, Inc., 572 U.S. 118, 127 (2014), a unanimous Supreme Court characterized the “zone of
interests” test described above as simply posing the question of whether Congress has created a cause of action that
“encompasses a particular plaintiff’s claim.” In addition, the Court described the rule barring adjudication of
generalized grievances as a constitutional requirement because such claims simply do not present a case or controversy
under Article III. Id. at 127 n.3. The Court did not decide whether another prudential standing doctrine—the prohibition
on raising another individual’s legal rights—was more properly understood as a constitutional requirement. Id. Given
the Court’s description of prudential standing principles, the future of the doctrine is disputed. See Ernest A. Young,
Prudential Standing After Lexmark International, Inc. v. Static Control Components, Inc., 10 DUKE J. CONST. L. & PUB.
POL’Y 149 (2014) (“[I]nteresting questions arise from the Court’s explicit shift away from the traditional rubric of
prudential standing. That shift raises a number of questions that are likely to bedevil the lower courts.”).
67 See, e.g., Sierra Club v. Morton, 405 U.S. 727, 735 (1972).
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Statutes of Limitations
A party challenging an agency action must file suit within the appropriate statute of limitations.68
Unless an agency’s enabling legislation provides for a specific statutory deadline,69 the default
six-year statute of limitations for bringing civil actions against the United States will apply.70 In
Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the Supreme Court
clarified when the clock begins to run on that six-year limitation when challenging an agency
action.71 Although numerous circuit courts for decades had held that the six-year statute of
limitations began to run when the agency finalized its action,72 the Supreme Court ruled that the
statute of limitations begins to run when the party bringing the challenge is injured by the agency
action.73 The Court’s decision turned on the language in the statute that states that a claim is
“barred unless the complaint is filed within six years after the right of action first accrues.”74
Holding that an action does not accrue until an injury occurs, the Court held that a facial
challenge may be brought more than six years after the date an agency finalizes an action if the
injury giving rise to the claim occurs after that date.75 For example, in Corner Post, the corporate
plaintiff had not yet been incorporated when the agency finalized the regulation at issue in the
case.76 Once incorporated, the entity raised a facial challenge against the agency’s final rule in
court, more than six years after the rule had been finalized.77 The Court allowed the suit to
proceed because the corporate plaintiff’s injury did not (and could not) occur until the corporation
existed and was injured by the regulation.78 The Court’s decision effectively extends, for some
parties, the time period during which they can raise a facial challenge to an agency action.79
As indicated above, the default six-year statute of limitations only applies if Congress has not
enacted a specific statutory deadline to govern a specific agency action. Many statutes authorizing
judicial review of particular agency actions impose their own filing deadlines for such
68 Citizens Ass’n of Georgetown v. Fed. Aviation Admin., 896 F.3d 425, 436–37 (D.C. Cir. 2018) (dismissing claim for
failing to file suit within required timeframe and noting that “[f]iling deadlines, replete throughout the United States
Code, promote prompt and final judicial review of agency decisions and ensure that agencies and affected parties can
proceed free from the uncertainty that an action may be undone at any time”).
69 For a discussion on the variety of statutes of limitations found in the U.S. Code, see JONATHAN R. SIEGEL,
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, THE ACUS SOURCEBOOK OF FEDERAL JUDICIAL REVIEW
STATUTES 42–51 (2022).
70 28 U.S.C. § 2401.
71 Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 603 U.S. 799, 811 (2024).
72 See, e.g., Trafalgar Cap. Assocs., Inc. v. Cuomo, 159 F. 3d 21, 34–37 (1st Cir. 1998); Wind River Min. Corp. v.
United States, 946 F.2d 710, 715 (9th Cir. 1991); but see Herr v. U.S. Forest Serv., 803 F.3d 809, 821 (6th Cir. 2015).
73 Corner Post, 603 U.S. at 811 (“[A] claim does not ‘accrue’ as soon as the defendant acts, but only after the plaintiff
suffers the injury required to press her claim in court.”); see also CRS Legal Sidebar LSB11197, Corner Post and the
Statute of Limitations for Administrative Procedure Act Claims, by Benjamin M. Barczewski and Jonathan M. Gaffney
(2024).
74 28 U.S.C. § 2401 (emphasis added).
75 Corner Post, 603 U.S. at 825. Both before and after Corner Post, a party could raise an as-applied challenge (such as
when an agency enforces a rule against the party), as opposed to a facial challenge, to the validity of an agency action
even if more than six years had passed after the agency finalized the action. See id. at 823 (“Regulated parties ‘may
always assail a regulation as exceeding the agency’s statutory authority in enforcement proceedings against them.’”
(quoting Herr, 803 F.3d at 821)).
76 Id. at 806.
77 Id.
78 Id. at 825.
79 Id. at 823–24.
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challenges.80 These specific deadlines can vary significantly in length, depending on the policy
preferences enacted by Congress.81 Further, as emphasized in Corner Post, the date on which the
clock begins to run will depend on the text of the statute—that is, a statute may provide that an
action must be brought within a certain time after the action accrues, like in Corner Post, or,
alternatively, within a certain time after a specific event has occurred.82
Ripeness and Mootness
Article III’s cases or controversies requirement also mandates that a matter must be ripe for a
federal court to review an agency action.83 Ripeness concerns the “timing of judicial intervention”
and prevents federal courts from adjudicating cases prematurely.84 The doctrine protects courts
“from entangling themselves in abstract disagreements over administrative policies, and also . . .
protect[s] . . . agencies from judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the challenging parties.”85 In deciding whether
a case is ripe, a court considers whether the issues presented in the case are ready for a judicial
decision and whether a delay would cause hardship to the parties in the case.86
In analyzing whether a delay would cause hardship, a court may require a party to show that an
agency’s action has “adverse effects of a strictly legal kind” or requires the party to adjust their
behavior in some way.87 In the context of a challenge to an agency rule, the promulgation of a
regulation can make a judicial challenge sufficiently ripe when the rule requires parties to comply
with new restrictions or risk serious penalties.88 In contrast, if a regulation does not require parties
to alter their day-to-day conduct, judicial review may be more appropriate in the future after
application of a rule to parties in a concrete way.89 When determining whether a case is fit for
judicial decision, a court may examine whether “further factual development would ‘significantly
80 See, e.g., 30 U.S.C. § 1276(a)(1) (requiring petitions for review of certain EPA actions to be filed within sixty days).
81 Compare 12 U.S.C. § 4623(a)(1) (requiring judicial challenge to be filed “within 10 days after receiving written
notice of the Director’s action”), with 42 U.S.C. § 6976(a)(1) (“[A] petition for review of action of the Administrator in
promulgating any regulation . . . shall be filed within ninety days from the date of such promulgation . . . .”).
82 Compare 28 U.S.C. § 2401 (providing that a claim is “barred unless the complaint is filed within six years after the
right of action first accrues”) (emphasis added), with 15 U.S.C. § 2060(2) (“Not later than 60 days after the
promulgation . . . of a rule or standard to which this subsection applies, any person adversely affected by such rule or
standard may file a petition . . . for judicial review of such rule.”) (emphasis added).
83 See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010) (“Ripeness reflects
constitutional considerations that implicate ‘Article III limitations on judicial power,’ as well as ‘prudential reasons for
refusing to exercise jurisdiction.’” (quoting Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993))); Nat’l Park
Hosp. Ass’n v. Dep’t of the Interior, 538 U.S. 803, 808 (2003).
84 Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985) (quoting Abbott Labs. v. Gardner, 387 U.S.
136, 148 (1967)).
85 Abbott Labs., 387 U.S. at 148–49.
86 Id. at 149.
87 Ohio Forestry Ass’n., Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
88 Abbott Labs., 387 U.S. at 152–53.
89 Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 58 (1993) (holding that a challenge to agency regulations was not ripe
because the rule “impose[d] no penalties for violating any newly imposed restriction, but limit[ed] access to a benefit
created by the Reform Act but not automatically bestowed on eligible aliens”); Toilet Goods Ass’n, Inc. v. Gardner,
387 U.S. 158, 164 (1967) (denying review of an agency regulation until it was applied in a particular circumstance, in
part, because the plaintiff’s primary conduct was not affected).
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advance [a court’s] ability to deal with the legal issues presented.’”90 If not, the issue may not be
ripe for review.91
The mootness doctrine imposes another limitation on justiciability derived from Article III’s caseor-controversy requirement.92 While the ripeness doctrine ensures that a matter is ready for
adjudication, the mootness doctrine requires that “an actual controversy must exist not only at the
time the complaint is filed, but through all stages of the litigation.”93 Thus, federal courts must
decline to hear (or continue to preside over) a case challenging an administrative action if it is
moot.94 A case is moot if the controversy initially existing at the time the lawsuit was filed is no
longer “live” due to a change in the law or in the status of the parties involved.95
An act by one of the parties that dissolves the dispute can also render a case moot.96 However, the
voluntary cessation doctrine provides that “a defendant cannot automatically moot a case by
simply ending its unlawful conduct once sued.”97 This doctrine prevents a litigant from evading
review by temporarily ceasing the unlawful activity and then, after the suit is dismissed,
reengaging in the challenged conduct.98 Courts will only dismiss a case as moot due to the
voluntary acts of a litigant if it is “absolutely clear” that the allegedly wrongful behavior will not
recur.99 At least some federal appellate courts, however, are more willing to dismiss a case as
moot when a government actor (such as a federal agency), rather than a private actor, voluntarily
ceases challenged conduct.100 As such, when an agency voluntarily repeals or withdraws a
90 Nat’l Park Hosp. Ass’n v. Dep’t of the Interior, 538 U.S. 803, 812 (2003) (quoting Duke Power Co. v. Carolina Env’t
Study Grp., Inc., 438 U.S. 59, 82 (1978)).
91 Id. (holding that legal challenge to an agency policy statement explaining the agency’s views on the Contract Dispute
Act was not ripe because additional factual development on how the agency would apply the law to particular contracts
would advance the Court’s ability to consider the legal issues presented); Nat'l Treasury Emps. Union v. Vought, No.
25-5091, 2025 WL 2371608, at *14 (D.C. Cir. Aug. 15, 2025) (holding challenge to agency head’s alleged decision to
“shutdown” an agency was unripe for review because “the exact scope of the putative shutdown” was unclear and the
court’s review would benefit from further factual development) (quoting Toilet Goods Ass’n, 387 U.S. at 164).
92 See, e.g., Friends of the Earth, Inc. v. Laidlaw Envt. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (The
Constitution’s case-or-controversy limitation on federal judicial authority . . . underpins . . . our mootness
jurisprudence.). For further discussion of the mootness doctrine, see Cong. Rsch. Serv., Overview of Mootness
Doctrine, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C1-81/ALDE_00000722/ (last visited Sept. 11, 2025).
93 Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 168 (2016) (quoting Already, LLC v. Nike, Inc., 568 U.S.
85, 90–91 (2013)).
94 See, e.g., Nat’l Mining Ass’n v. U.S. Dep’t of the Interior, 251 F.3d 1007, 1010 (D.C. Cir. 2001) (holding that a
party’s challenge to agency rules was moot because new rules applied).
95 Liner v. Jafco, 375 U.S. 301, 306 n.3 (1964).
96 See De Funis v. Odegaard, 416 U.S. 312, 319 (1974) (holding that a challenge to a law school’s admission standards
was moot because the student has already been admitted, was entering his final term, and would remain in school
regardless of the resolution of the case).
97
Already, LLC, 568 U.S. at 91.
98 See id. (explaining that, in the absence of the voluntary cessation doctrine, “a defendant could engage in unlawful
conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he
achieves all his unlawful ends”).
99 Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 457 n.1 (2017) (quoting Friends of the Earth,
Inc. v. Laidlaw Envt. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)).
100 Citizens for Resp. & Ethics in Wash. v. Wheeler, 352 F. Supp. 3d 1, 13 (D.D.C. 2019) (“This Court and other
Circuits have previously and ‘consistently recognized that where the defendant is a government actor — and not a
private litigant — there is less concern about the recurrence of objectionable behavior.’” (quoting Citizens for Resp. &
Ethics in Wash. v. SEC, 858 F. Supp. 2d 51, 61–62 (D.D.C. 2012))); see also People for the Ethical Treatment of
Animals v. U.S. Dep’t of Agric., 918 F.3d 151, 157 (D.C. Cir. 2019) (“In analyses of ‘voluntary cessation,’ many of
our sister circuits have been ready to give declarations by (or on behalf of) government officials––public servants
(continued...)
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challenged rule or policy, courts have declared cases moot despite the agency’s potential ability to
reinstate the action at a future date.101 Nonetheless, a court must be satisfied that the agency will
not resume the challenged conduct.102
Exhaustion of Remedies
A court might deny review because a party failed to exhaust its administrative remedies before
suing in federal court.103 Among other things, the doctrine of exhaustion seeks to avoid
unnecessary litigation by requiring the full development of an administrative record before a
court examines a case.104 However, the Supreme Court has held that in suits brought under the
APA, federal courts lack the power to require parties to exhaust their administrative remedies if
no statute or agency rule requires such exhaustion.105 Nonetheless, if a challenge to administrative
action is brought under a different statute, or if agency regulations require exhaustion, failure to
pursue required administrative remedies could preclude immediate judicial challenges to federal
agency action.106
Supreme Court precedent provides an exception to exhaustion requirements for certain
constitutional challenges. In Axon Enterprise, Inc. v. Federal Trade Commission (FTC), the
Supreme Court held that parties can bring to federal court constitutional challenges to an agency’s
structure without first exhausting administrative remedies during an enforcement proceeding.107
Although the FTC brought an enforcement action against the party in its own administrative
forum, the Supreme Court held that the party could immediately bring constitutional challenges
directly to federal court without first raising those arguments before the agency’s own tribunal.108
sworn to uphold the law––somewhat higher credence than statements made by private parties.”); Rio Grande Silvery
Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1117 n.15 (10th Cir. 2010) (“Indeed, despite Laidlaw’s heavy
burden, some courts have expressly treated governmental officials’ voluntary conduct ‘with more solicitude’ than that
of private actors.” (quoting Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988))).
101 See, e.g., Lewis v. Becerra, No. CV 18-2929 (RBW), 2023 WL 3884595, at *12 (D.D.C. June 8, 2023) (dismissing
challenge as moot after agency rescinded and replaced challenged agency rulings); Citizens for Resp. & Ethics in
Wash., 352 F. Supp. 3d at 14 (holding voluntary cessation doctrine does not apply when agency “has taken the
affirmative step of revising its records-management policy” and it “would have to decide to promulgate a new policy”
to resume the challenged conduct).
102 See, e.g., West Virginia v. EPA, 597 U.S. 697, 720 (2022) (“Here the Government ‘nowhere suggests that if this
litigation is resolved in its favor it will not’ reimpose emissions limits predicated on generation shifting; indeed, it
‘vigorously defends’ the legality of such an approach [and w]e do not dismiss a case as moot in such circumstances.”
(quoting Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007))); People for the Ethical
Treatment of Animals, 918 F.3d at 158 (“[The USDA letter] doesn’t express the agency’s position clearly enough to
convince us that, as to all requested document types, it is ‘absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur.’” (quoting Ladlaw, 528 U.S. at 189)).
103 McCarthy v. Madigan, 503 U.S. 140 (1992). This doctrine often derives from prudential considerations but is also
sometimes required by statute. See Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247–48 (D.C. Cir. 2004).
104 Avocados Plus, 370 F.3d at 1247; Portela-Gonzalez v. Sec’y of the Navy, 109 F.3d 74, 76 (1st Cir. 1997) (“We
agree with the district court that [the plaintiff] impermissibly failed to exhaust her administrative remedies.”).
105 Darby v. Cisneros, 509 U.S. 137, 146–47 (1993); DSE, Inc. v. United States, 169 F.3d 21, 26–27 (D.C. Cir. 1999)
(“Under the APA, a party can seek judicial review from a final agency action without pursuing an intra-agency appeal
unless required to do so by statute or by regulation.”).
106 See, e.g., Conservation Force v. Salazar, 919 F. Supp. 2d 85, 90 (D.D.C. 2013) (dismissing claim because plaintiff
failed to exhaust administrative remedies required by agency regulations); Career Educ., Inc. v. Dep’t of Educ., 6 F.3d
817, 820 (D.C. Cir. 1993) (requiring exhaustion pursuant to agency regulation “in order to give the Department’s top
level of appeal an opportunity to place an official imprimatur on the Department’s interpretation of its regulations
before it is reviewed by a federal court”).
107 Axon Enter., Inc. v. FTC, 598 U.S. 175, 195–96 (2023).
108 Id. at 182, 195–96.
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Although the FTC Act provides that review of an FTC order shall be brought to a federal court of
appeals, the Supreme Court allowed the suit to enjoin the enforcement action to proceed in
federal district court because the questions regarding the constitutionality of the agency’s
structure were not the type of questions that the agency were equipped to answer.109
APA-Specific Requirements
As discussed above, the APA is perhaps the most prominent statutory vehicle for challenging the
actions of a federal agency.110 It provides a “strong presumption that Congress intends judicial
review of administrative action.”111 Nonetheless, in addition to the limits on the availability to
judicial review discussed in the above sections, the APA also provides certain limits on the
availability of judicial review for claims brought under the act. For suits brought under the APA,
judicial review is available only for “final agency action.”112 Further, judicial review is
unavailable if another statute precludes judicial review or if the action is “committed to agency
discretion by law.”113 This section of the report discusses these limitations on the availability of
judicial review under the APA.
Review of “Final Agency Action”
Under the APA, a federal court is limited to reviewing “final agency action.”114 Thus, a
preliminary question is what constitutes an agency for the purposes of the APA. The APA defines
the term broadly as “each authority of the Government of the United States” but then enumerates
various entities that are excluded from that definition.115 The definition generally includes all
executive branch agencies, including the independent regulatory agencies, but specifically
excludes Congress and the judiciary,116 as well as courts-martial, military commissions, and
military authorities in times of war or in the field.117 Further, the Supreme Court has held that the
definition of agency in the APA does not encompass the President.118
109 Id.
110 See SIEGEL, supra note 69, at 14 (“Litigants and courts rely on [the APA’s] general judicial review provisions
thousands of times every year.”).
111 Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670 (1986) (citing Abbott Labs. v. Gardner, 387 U.S. 136,
140 (1967); see also McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 155 (2025) (“[T]his
Court has long recognized a ‘basic presumption of judicial review’ of agency action.” (quoting Weyerhaeuser Co. v.
U.S. Fish & Wildlife Serv., 586 U.S. 9, 22 (2018).
112 5 U.S.C. § 704.
113 Id. §§ 701, 704; Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984).
114 5 U.S.C. § 704.
115
Id. § 551(1).
116 Id. This exemption would appear to apply to not only Congress and the courts directly but also agencies within the
legislative and judicial branches. See, e.g., Ethnic Emps. of Libr. of Cong. v. Boorstin, 751 F.2d 1405, 1416 n.15 (D.C.
Cir. 1985) (“[T]he Library [of Congress] is not an agency under the Administrative Procedure Act.”); Wash. Legal
Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446, 1449 (D.C. Cir. 1994) (“Over the years, virtually every case interpreting
the APA exemption for ‘the courts of the United States’ has held that the exemption applies to the entire judicial
branch.”).
117 5 U.S.C. § 551(1).
118 Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (citing the “respect for the separation of powers and the unique
constitutional position of the President” and holding that the APA’s “textual silence” concerning whether the law
applies to the President was “not enough to subject the President to the provisions of the APA”). However, the Court
ruled that the President is still subject to constitutional claims arising outside of the APA. Id. (citing Youngstown Sheet
& Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952)).
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Review under the APA is also limited to agency action, which is defined as “the whole or a part
of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to
act.”119 Courts thus may review a wide variety of issues, including agency rules, denials of
licenses and permits, and sanctions issued against private parties.120 Courts will deny review if the
agency’s challenged conduct does not fit within the statutory definition of action.121 For example,
some courts have denied requests for review of agency negotiating positions, publications, and
press releases, as those documents do not necessarily qualify as rules, orders, or sanctions within
the meaning of the APA.122 Further, the Supreme Court has held that a plaintiff may not “seek
wholesale improvement of a [broad regulatory] program by court decree . . . [but] must direct its
attack against some particular ‘agency action’ that causes it harm.”123 Thus, courts have held that
challenges must target “specific” agency actions, rather than the general operation of broad
agency programs or plans.124
Judicial review is only available if the agency action is final.125 The Supreme Court has
articulated two requirements for an agency’s action to qualify as final. First, the action may not be
tentative or interlocutory in nature but must represent the “‘consummation’ of the agency’s
decisionmaking process.”126 Second, it must be an action “by which ‘rights or obligations have
119 5 U.S.C. § 551(13).
120 Id. § 551(4) (defining a “rule” for purposes of the APA), (8) (defining “license”), (10) (defining “sanction”).
121 See, e.g., Nat’l Veterans Legal Servs. Program v. U.S. Dep’t of Def., 990 F.3d 834, 839 (4th Cir. 2021) (“When
authorizing review of ‘agency action,’ the APA ‘does not provide judicial review for everything done by an
administrative agency.’” (quoting Hearst Radio v. FCC, 167 F.2d 225, 227 (D.C. Cir. 1948))); Alabama-Coushatta
Tribe of Tex. v. United States, 757 F.3d 484, 490 (5th Cir. 2014) (“Because the Tribe fails to point to any identifiable
‘agency action’ within the meaning of § 702 for both claims, we hold that the Tribe has failed to prove that subjectmatter jurisdiction exists for this lawsuit.”); Hearst Radio, 167 F.2d at 227 (“Broad as is the judicial review provided
by the Administrative Procedure Act, it covers only those activities included within the statutory definition of ‘agency
action.’”).
122 See, e.g., Walmart Inc. v. U.S. Dep’t of Just., 21 F.4th 300, 309 (5th Cir. 2021) (holding that agency negotiating
positions did not constitute agency action and barring suit for failure to “identify agency action”); Indus. Safety Equip.
Ass’n, Inc. v. EPA, 837 F.2d 1115, 1118–19 (D.C. Cir. 1988); see also Trudeau v. FTC, 456 F.3d 178, 189 (D.C. Cir.
2006) (noting that “we have never found a press release of the kind at issue here to constitute ‘final agency action’
under the APA”). See also Barry v. SEC, No. 10-CV-4071, 2012 WL 760456, at *5 (E.D.N.Y. Mar. 7, 2012)
(reviewing the definition of “agency action” under the APA and determining that the definition “does not appear to
embrace the press release” in question).
123 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891–93 (1990) (holding that it is “certain that the flaws in the entire
‘program’—consisting principally of the many individual actions referenced in the complaint, and presumably actions
yet to be taken as well—cannot be laid before the courts for wholesale correction under the APA”). The Supreme Court
stated that the political branches were the appropriate venue for seeking broad programmatic change. Id.
124 See, e.g. City of New York v. Dep’t of Def., 913 F.3d 423, 432 (4th Cir. 2019) (providing that the APA limits
review to “only those acts that are specific enough to avoid entangling the judiciary in programmatic oversight, clear
enough to avoid substituting judicial judgments for those of the executive branch, and substantial enough to prevent an
incursion into internal agency management”); Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 20
(D.C. Cir. 2006) (holding agency strategy established in agency budget request is not agency action under APA
because it is a “broad ‘programmatic’ statement that Lujan keeps from our review” (citing Lujan, 497 U.S. at 891)).
125 5 U.S.C. § 704. Some courts have wrapped this requirement into the ripeness inquiry, concluding that a claim is not
ripe if it does involve final agency action. See, e.g., Los Alamos Study Grp. v. U.S. Dep’t of Energy, 692 F.3d 1057,
1065 (10th Cir. 2012); Dietary Supplemental Coal., Inc. v. Sullivan, 978 F.2d 560, 562 (9th Cir. 1992).
126 Bennett v. Spear, 520 U.S. 154, 178 (1997) (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.
103, 113 (1948)). An action may meet this first requirement even if it is potentially subject to revision at a future date.
For example, in U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590, 597–98 (2016), the Supreme Court held
that this first prong was satisfied upon the agency’s issuance of a jurisdictional determination that was valid for five
years and subject to revision upon receipt of new information. Id.
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been determined,’ or from which ‘legal consequences will flow.’”127 This principle limits the
judicial review of a variety of agency actions that do not have a final, legally binding
consequence. For example, this restriction may bar judicial review of an agency’s
recommendation to the President to take certain actions.128 The finality requirement can also, at
times, shield certain agency guidance documents from judicial review if such guidance does not
legally bind the public.129
Statutory Preclusion of Review
Although the APA generally provides for judicial review of final agency action, the law contains
certain exceptions.130 One exception is that judicial review will not be available when a separate
statute precludes such review.131 However, the Supreme Court has interpreted the APA as
establishing a “strong presumption that Congress intends judicial review of administrative
action,”132 and that “only upon a showing of ‘clear and convincing evidence’ of a contrary
legislative intent should the courts restrict access to judicial review.”133 Some statutes expressly
preclude judicial review of agency actions.134 In other situations, review may be precluded by
implication.135 Determining whether another statute precludes review under the APA may include
an examination of that statute’s “express language[,] . . . the structure of the overall statutory
scheme, its objectives, its legislative history, and the nature of the administrative action
involved.”136 In some cases, judicial review may be precluded because it would contradict
congressional intent, such as by disrupting or impeding the intended swift operation of a complex
regulatory framework.137 However, in the context of lawsuits alleging constitutional violations,
127 Bennett, 520 U.S. at 178 (quoting Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S.
62, 71 (1970)). The Supreme Court considers the effect that the action has on parties and has stated that it takes a
“‘pragmatic’ approach . . . to finality” determinations. Hawkes Co., 578 U.S. at 599. For example, the Court held that
an agency’s issuance of a jurisdictional determination had legal consequences for the plaintiff even though no action
could be brought against plaintiff for failing to conform to the determination itself. Id. The Supreme Court held the
action had legal consequences because the determination was binding on the government and its issuance had the effect
of providing or denying plaintiffs with a five-year safe harbor from enforcement actions under the Clean Water Act. Id.
128 Dalton v. Specter, 511 U.S. 462, 469–70 (1994); Franklin v. Massachusetts, 505 U.S. 788, 798 (1992).
129 The situations in which guidance documents constitute final agency action are disputed. Compare Nat’l Mining
Assoc. v. McCarthy, 758 F.3d 243, 247 (D.C. Cir. 2014) (ruling that a guidance document did not constitute final
agency action), with Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022–23 (D.C. Cir. 2000) (concluding that a
guidance document was final agency action). For a discussion on judicial review and guidance documents, see CRS
Legal Sidebar LSB10591, Agency Use of Guidance Documents, by Kate R. Bowers (2021).
130 5 U.S.C. § 701(a).
131 Id. § 701(a)(1).
132 Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670 (1986) (citing Abbott Labs. v. Gardner, 387 U.S. 136,
140 (1967)); see also McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 155 (2025) (“[T]his
Court has long recognized a ‘basic presumption of judicial review’ of agency action.” (quoting Weyerhaeuser Co. v.
U.S. Fish and Wildlife Serv., 586 U.S. 9, 22 (2018))).
133 Abbott Labs., 387 U.S. at 141 (quoting Rusk v. Cort, 369 U.S. 367, 379–80 (1962)).
134 See, e.g., 5 U.S.C. § 805 (barring judicial review of any “determination, finding, action, or omission under” the
Congressional Review Act). Most courts have concluded this provision to preclude judicial review of questions such as
whether an agency should have submitted an action to Congress pursuant to the CRA. See, e.g., Montanans for
Multiple Use v. Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009). For a survey of judicial review bars appearing in the
U.S. Code, see Laura E. Dolbow, Barring Judicial Review, 77 VAND. L. REV. 307, 323 (2024).
135 See, e.g., Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984).
136 Id. at 345.
137 Id. at 346–47. In addition, judicial review may be precluded in one court because the statute establishes a
comprehensive scheme that funnels review into a particular court in specific circumstances. Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 208–09 (1994); Elgin v. Dep’t of the Treasury, 567 U.S. 1, 10–12 (2012).
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courts have read preclusion provisions narrowly to preserve a federal court’s role of reviewing
constitutional claims.138 The Supreme Court has required Congress to provide a clear statement
that it intends to preclude constitutional claims from judicial review.139
Committed to Agency Discretion
Review under the APA is also unavailable if the agency’s action is committed to the agency’s
discretion.140 An agency’s action is committed to its discretion when a statute’s terms are so broad
that there simply is “no law to apply” in evaluating its requirements.141 In other words, if “the
statute is drawn so that a court would have no meaningful standard against which to judge the
agency’s exercise of discretion,” then judicial review is unavailable.142 The Supreme Court has
cautioned, however, that this exception to judicial review is “narrow” and only applied in rare
circumstances.143
A prominent example of a matter usually committed to an agency’s discretion is the decision not
to initiate an enforcement action against a third party.144 The Court has explained that the decision
to initiate an enforcement action involves a “complicated balancing of a number of factors which
are peculiarly within [an agency’s] expertise” and is “generally committed to an agency’s
absolute discretion.”145 However, the Court characterized such decisions as presumptively
unreviewable—“the presumption may be rebutted where the substantive statute [at issue] has
provided guidelines for the agency to follow in exercising its enforcement powers.”146 Similarly,
the Court has held that an agency’s decision to allocate funds from a lump-sum appropriation is
committed to an agency’s discretion, because the purpose of such an appropriation is to grant the
agency flexibility to spend funds.147 Likewise, the Court has held that the decision by the Director
of the Central Intelligence Agency (CIA) to discharge an employee for reasons in the “interests of
the United States” is committed to agency discretion, a ruling based in part on the overall
structure of the relevant statute directing the CIA to gather and protect intelligence sources.148
138 See McNary v. Haitian Refugee Ctr. Inc., 498 U.S. 479, 498 (1991) (holding that a statutory preclusion provision
did not deprive courts of constitutional challenges to agency conduct); Johnson v. Robison, 415 U.S. 361, 367 (1974)
(holding that a statutory preclusion provision did not deprive courts of constitutional challenges to the statutory
scheme); see also Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J. 148, 178 (2019)
(“[T]he constitutionality of jurisdiction-stripping proposals remains one of the most significant unanswered questions
in the field of federal courts.”).
139 Califano v. Sanders, 430 U.S. 99, 109 (1977) (“Thus those cases merely adhered to the well-established principle
that when constitutional questions are in issue, the availability of judicial review is presumed, and we will not read a
statutory scheme to take the ‘extraordinary’ step of foreclosing jurisdiction unless Congress’ intent to do so is
manifested by ‘clear and convincing’ evidence.” (quoting Weinberger v. Salfi, 422 U.S. 749, 762 (1975)).
140 5 U.S.C. § 701(a)(2).
141 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
142
Heckler v. Chaney, 470 U.S. 821, 830 (1985).
143 See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 16 (2020); Weyerhaeuser Co. v. U.S. Fish
& Wildlife Serv., 586 U.S. 9, 23 (2018).
144 Id.
145 Id. at 831–32; see Cass Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. CHI. L. REV. 653, 675–
83 (1985).
146 Heckler, 470 U.S. at 833. The Court also provided that if an agency adopted a non-enforcement policy “so extreme
as to amount to an abdication of its statutory responsibilities,” the presumption of nonreviewability could also be
overcome. Id.
147 Lincoln v. Vigil, 508 U.S. 182, 192 (1993).
148 Webster v. Doe, 486 U.S. 592, 601 (1988). The Webster Court did preserve the plaintiff employee’s ability to bring
constitutional claims in federal court, ruling that the statute did not preclude such suits. Id. at 604–05.
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The Scope of Review Under the APA
As discussed above, the APA contains a waiver of the United States’ sovereign immunity under
certain circumstances,149 providing a cause of action for individuals aggrieved by agency conduct
to seek judicial review of an agency’s decision.150 The APA directs reviewing courts to “compel
agency action unlawfully withheld or unreasonably delayed” and to “hold unlawful and set aside
agency action, findings, and conclusions” that are
(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 [5 U.S.C. §§] 556 and 557
[concerning formal rulemaking and adjudicatory proceedings] 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.151
As a result, courts are generally authorized to direct an agency to comply with the law and can
invalidate actions that are inconsistent with the agency’s statutory authority.152 Courts may also
review an agency’s compliance with statutory procedural requirements, such as notice-andcomment rulemaking procedures imposed by other provisions of the APA.153 In addition, a court
may examine an agency’s discretionary decisions and invalidate actions that are arbitrary or
capricious.154
Review of an Agency’s Interpretation of Statutory Authority
When agencies exercise the authority delegated to them by Congress, they are limited to taking
actions authorized by law.155 The Supreme Court has stated that “an agency literally has no power
to act . . . unless and until Congress confers power upon it.”156 Consequently, agencies may not
exceed the statutory bounds of their authority.157
149 See supra “Sovereign Immunity.”
150 See supra “Cause of Action.”
151 5 U.S.C. § 706. A separate provision, 5 U.S.C. § 553(e), provides interested parties the right to petition a
government agency to issue, amend, or repeal a rule. This provision requires agencies that deny such a petition to
provide a brief statement of their reasons for that decision. An agency’s denial is judicially reviewable, see
Massachusetts v. EPA, 549 U.S. 497, 527 (2007), but the scope of that review “is ‘extremely limited’ and ‘highly
deferential,’” id. (quoting Nat’l Customs Brokers & Forwarders Assn. of Am., Inc. v. United States, 883 F.2d 93, 96
(D.C. Cir. 1989)).
152 5 U.S.C. § 706(2)(C).
153 Id. § 706(2)(D).
154 Id. § 706(A). Courts may overturn decisions that are unsupported by substantial evidence in formal proceedings,
although review of an agency’s factual findings in other circumstances is governed by the arbitrary-and-capricious
standard. See Assoc. of Data Processing Serv. Orgs., Inc. v. Bd. of Govs. of the Fed. Res. Sys., 745 F.2d 677, 684 (D.C.
Cir. 1984); see discussion infra note 231.
155 La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986).
156 Id.
157 See, e.g., West Virginia v. EPA, 597 U.S. 697, 723 (2022) (“Agencies have only those powers given to them by
(continued...)
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The APA authorizes courts to “set aside” agency action that is “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right” or otherwise “not in accordance with law.”158
It directs courts to “decide all relevant questions of law” and to “interpret constitutional and
statutory provisions.”159 Courts, therefore, interpret the meaning of statutory provisions to
determine whether an agency’s actions accord with its statutory authority. In 2024, the Supreme
Court held in Loper Bright v. Raimondo that courts should conduct this review de novo.160 That
is, a court shall afford an agency’s interpretation of the statute no deference when determining the
meaning of an applicable statute.161
Since at least the 1940s, the Supreme Court has developed various judicial doctrines to address
agency interpretations of federal law. In 1946, the Court’s opinion in Skidmore v. Swift & Co.—
which remains good law after the Court’s 2024 Loper Bright decision—directed courts to give an
agency’s interpretation of a statute appropriate “weight” according to its “power to persuade”
when determining the meaning of a statute. 162 Then, from 1984 to 2024, the Supreme Court’s
Chevron doctrine—overruled in the Loper Bright decision—required courts to defer to certain
agency interpretations of ambiguous statutes, so long as the agency’s interpretation was
reasonable.163 In the years following the Court’s Chevron decision, the Court also articulated the
major questions doctrine, requiring agencies to point to “clear congressional authorization” to
regulate on issues of great “economic and political significance.”164 This section of the report
provides a brief overview of Chevron and Skidmore, the Supreme Court’s controlling opinion in
Loper Bright, and the Court’s major questions doctrine.
Chevron Deference and Skidmore Weight
Prior to being overruled in 2024, Chevron established a two-step framework that courts applied
when reviewing an agency’s interpretation of a statute it administered.165 Pursuant to that
framework, courts first examined whether the meaning of a statute was clear.166 If so, “that [was]
the end of the matter,” and courts enforced the “unambiguously expressed intent of Congress.”167
Where a statute contained an ambiguity or a gap, however, a court proceeded to the framework’s
second step. At “step two,” courts examined whether an agency’s interpretation of the ambiguous
provision of the statute was reasonable.168 If the agency’s interpretation was reasonable, the court
was required to defer to the agency’s interpretation, even if the court would have otherwise
reached a contrary conclusion.169 The Chevron decision rested on several assumptions, including
Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change
the plot line.’” (quoting Ernest Gellhorn & Paul Verkuil, Controlling Chevron-Based Delegations, 20 CARDOZO L. REV.
989, 1011 (1999))).
158 5 U.S.C. § 706(2)(A), (C).
159 Id. § 706.
160 See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412–13 (2024).
161 Id.
162 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
163 See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
164 See, e.g., West Virginia v. EPA, 597 U.S. 697, 721 (2022); Nat’l Fed’n of Ind. Bus. v. OSHA, 595 U.S. 109, 117
(2022) (per curiam); King v. Burwell, 576 U.S. 473, 485–86 (2015); Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324
(2014).
165 Chevron, 467 U.S. at 842–43 (1984).
166 Id. at 842.
167 Id. at 842–43.
168 Id.
169 Id. at 843.
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that statutory ambiguity indicated Congress’s intent to delegate interpretive authority to agencies,
that agencies may possess significant expertise concerning the law’s administration, and that
agencies are more politically accountable than courts and thus have superior claim to render
policy decisions.170 Some commentators had noted that agency statutory interpretations were
more likely to be upheld when the doctrine applied, particularly if a court reached Chevron’s
second step.171
Even when Chevron did not apply,172 a court could still accord an agency interpretation of a
statute some respect or weight. Under the Court’s pre-Chevron decision of Skidmore v. Swift &
Co., an interpretation by the relevant agency “made in pursuance of official duty” and premised
on “specialized experience” counts as a “body of experience and informed judgment” that courts
can look to when determining a statute’s meaning.173 Under Skidmore, courts can, but are not
required to, give weight or respect to an agency interpretation to the extent the interpretation is
persuasive.174 The Skidmore Court explained that the persuasiveness of an agency interpretation
“will depend upon the thoroughness evident in [the agency’s] consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those factors which give
it power to persuade,” but not control.175 Unlike Chevron, as discussed below, Skidmore remains
good law.
Loper Bright Enterprises v. Raimondo
In 2024, the Supreme Court overruled Chevron in Loper Bright.176 The Court held that the
Chevron framework contradicted Section 706 of the APA’s requirement that courts “decide all
relevant questions of law” and “interpret . . . statutory provisions.”177 The majority opinion
rejected Chevron’s presumption that a statutory ambiguity indicates a delegation to agencies to
170 Id. at 843–44, 864–66.
171 See Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 MICH. L. REV. 1, 6 (2017) (“In other
words, agencies won significantly more in the circuit courts when Chevron deference applied, at least when the court
expressly considered whether to apply Chevron. Indeed, there was nearly a twenty-five-percentage-point difference in
agency-win rates with Chevron deference (77.4%) than without (53.6%).”); Orin S. Kerr, Shedding Light on Chevron:
An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 YALE J.REG. 1, 31 (1998) (determining
that in 1995 and 1996 courts that reached step two of the Chevron test “upheld the agency view in 89% of the
applications.”). But see David Zaring, Reasonable Agencies, 96 VA. L. REV. 135, 138 (2010) (“[C]ourts do not, in the
end, discern the differences among these various doctrines, frequently do not distinguish among the doctrines in
application, and probably do not really care which standard of review they apply most of the time.”); Richard J. Pierce,
Jr., What Do the Studies of Judicial Review of Agency Actions Mean?, 63 ADMIN. L. REV. 77, 85 (2011) (reviewing
various studies examining agency win-rates and concluding that “doctrinally-based differences in outcome are barely
detectable”).
172 Chevron did not apply every time a court evaluated an agency’s proffered interpretation of a statute. See, e.g.,
Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (“Interpretations such as those in opinion letters—like
interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force
of law—do not warrant Chevron-style deference.”). The initial step of determining whether the Chevron doctrine
would apply to a particular case is often referred to as “Chevron step zero.” See, e.g., Cass R. Sunstein, Chevron Step
Zero, 92 VA. L. REV. 187, 191 (2006).
173 Skidmore v. Swift & Co., 323 U.S. 134, 139–40 (1944).
174 Id. at 140.
175 Id.
176 Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412–13 (2024). For more information on Loper Bright, see CRS
Report R48320, Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law, by Benjamin
M. Barczewski (2024).
177 Loper Bright, 603 U.S. at 398–99; see 5 U.S.C. § 706.
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choose one among the multiple possible reasonable interpretations of a statute.178 Statutes, the
Court held, have a single best meaning fixed at the time of enactment, and the APA’s command
requires courts to determine the meaning of a statute using their “independent legal judgment.”179
The Court explained that, as part of their traditional role in determining the meaning of federal
law, courts—and not agencies—have special expertise in resolving the meaning of ambiguous
statutes.180
The Court recognized the possibility that an agency’s interpretation might be due weight or
respect given the agency’s “body of experience and informed judgment.”181 Quoting its decision
in Skidmore, the Court observed that such expertise has long been one of the factors which can
give an agency’s interpretation the “power to persuade,” though not control.182 A “better
presumption,” the Court concluded, is thus that Congress expects that courts will do their
“ordinary job” in determining the best reading of a statute, “with due respect for the views of the
Executive Branch.”183
The Supreme Court also acknowledged that sometimes the best reading of a statute is that
Congress did delegate authority to an agency to exercise discretion when administering a
statute.184 The Court provided examples of statutes in which Congress explicitly authorized an
agency to define statutory terms185 or gave agencies broad discretionary authority to regulate
when “appropriate” or “reasonable.”186 The Court concluded that, in such circumstances, a court’s
role is to fix the permissible boundaries of the statutory delegation and to then ensure that the
agency has acted reasonably.187
The Loper Bright decision means that courts will no longer defer to an agency’s interpretation of
a statute.188 Instead, a court must “deploy[] its full interpretive toolkit”189 to determine and give
legal effect to the best meaning of the law.190 The Court repeatedly cited and quoted from its prior
Skidmore decision in explaining the proper role for courts when interpreting an ambiguous
statute.191 These positive references suggest that, going forward, Skidmore may play a more
prominent role in guiding lower courts’ interpretations of ambiguous statutes where an agency
178 Loper Bright, 603 U.S. at 399–400.
179 Id. at 400–01.
180 Id. The Court also rejected Chevron’s background presumption that Congress intends for agency experts to resolve
statutory ambiguities. Id. at 401–02. Even when ambiguity concerns a technical question, the Court reasoned, that does
not indicate that Congress has wrested the power to authoritatively interpret the law from courts and given it to an
agency. Id. Instead, Congress expects courts to resolve “technical statutory questions.” Id.
181 Id. at 402 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
182 Id. (quoting Skidmore, 323 U.S. at 140).
183 Id. at 402–03.
184 Id. at 394 (“In a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized
to exercise a degree of discretion. Congress has often enacted such statutes.”).
185 Id. at 394–95 (“For example, some statutes ‘expressly delegate[]’ to an agency the authority to give meaning to a
particular statutory term.”) (quoting Batterton v. Francis, 432 U.S. 416, 425 (1977)).
186 Id. at 395 (“Other[ statutes] empower an agency . . . to regulate subject to the limits imposed by a term or phrase that
‘leaves agencies with flexibility,’ such as ‘appropriate’ or ‘reasonable.’”) (quoting Michigan v. E.P.A., 576 U.S. 743,
752 (2015) (citations omitted).
187 Id.
188 Id. at 412–13.
189 Id. at 408–09.
190 Id. at 400.
191 Id. at 388, 394, 399, 402; id. at 474–76 (Kagan, J., dissenting) (“First, the majority makes clear that what is usually
called Skidmore deference continues to apply.”).
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with “specialized experience” has supplied its own interpretation.192 That said, the “due respect”
that courts can afford interpretations of the executive branch under Skidmore does not mean that
the agency’s interpretation will receive controlling weight.193
Major Questions Doctrine
The major questions doctrine mandates that an agency be able to show that it has clear
congressional authorization to regulate in areas of great “economic and political significance.”194
In applying the doctrine, the Court has cautioned that Congress does not authorize agencies to
regulate on issues of significant societal import in vague or subtle terms195—as the Court opined
in Whitman v. American Trucking Associations, Congress “does not . . . hide elephants in
mouseholes.”196 As such, courts should “hesitate before concluding that Congress has intended”
to confer such authority.197 Instead, the agency “must point to ‘clear congressional authorization’
for the power it claims.”198 The Court has not articulated a specific test to determine whether a
particular action constitutes a “major question” but has used the doctrine to analyze agency
authority in myriad subject areas.
For example, in Biden v. Nebraska, the Court invalidated the Department of Education’s plan to
cancel approximately $430 billion worth of student loans pursuant to authority granted by the
Higher Education Relief Opportunities for Students Act (HEROES Act).199 The Secretary of
Education moved to cancel the loans pursuant to a provision allowing for the waiver or
modification of the law’s statutory and regulatory provisions during an emergency.200 The Court
found that prior uses of the waiver authority were “extremely modest and narrow in scope”201
compared to the “staggering” action taken by the Secretary to cancel billions of dollars in
loans.202 In holding that the agency did not have the statutory authority to implement the action,
192 Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944).
193 Loper Bright, 603 U.S. at 386 (“Whatever respect an Executive Branch interpretation was due, a judge ‘certainly
would not be bound to adopt the construction given by the head of a department.’” (quoting Decatur v. Paulding,
39 U.S. 497, 515 (1840))).
194 See, e.g., West Virginia v. EPA, 597 U.S. 697, 721 (2022); Nat’l Fed’n of Ind. Business v. OSHA, 595 U.S. 109,
117 (2022) (per curiam); King v. Burwell, 576 U.S. 473, 485–86 (2015); Util. Air Regul. Grp. v. EPA, 573 U.S. 302,
324 (2014). For more information on the major questions doctrine, see CRS In Focus IF12077, The Major Questions
Doctrine, by Kate R. Bowers (2022), and CRS Legal Sidebar LSB10791, Supreme Court Addresses Major Questions
Doctrine and EPA’s Regulation of Greenhouse Gas Emissions, by Kate R. Bowers (2022). For a discussion on the
major questions doctrine, its relationship to Chevron deference, and potential future applications following the Court’s
decision in Loper Bright, see Barczewski, Loper Bright Enterprises, supra note 176.
195 Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) (“[W]e are confident that
Congress could not have intended to delegate a decision of such economic and political significance to an agency in so
cryptic a fashion.”); MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 (1994) (“It is highly unlikely
that Congress would leave the determination of whether an industry will be entirely, or even substantially, rateregulated to agency discretion—and even more unlikely that it would achieve that through such a subtle device as
permission to ‘modify’ rate-filing requirements.”).
196 Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001).
197 Brown & Williamson Tobacco Corp., 529 U.S. at 159.
198 West Virginia, 597 U.S. at 700.
199 Biden v. Nebraska, 600 U.S. 477, 506–07 (2023).
200 Id. at 494.
201 Id. at 501.
202 Id. at 502–03 (noting that the economic impact of the loan forgiveness program “amounts to nearly one-third of the
Government’s $1.7 trillion in annual discretionary spending”).
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the Court stated “it is ‘highly unlikely that Congress’ authorized such a sweeping loan
cancellation program ‘through such a subtle devise as permission to “modify.”’”203
Review of Agency Interpretations of Regulations
An agency’s interpretation of its own regulations can also be the subject of judicial review. The
APA provides that a “reviewing court shall decide all relevant questions of law . . . and determine
the meaning or applicability of the terms of an agency action.”204 Just as ambiguities arise in
statutory provisions that agencies implement,205 similar uncertainties sometimes accompany
agency regulations.206 Supreme Court doctrine, reiterated in Auer v. Robbins207 and further
developed in Kisor v. Wilkie, instructs courts to defer to certain reasonable interpretations of a
genuinely ambiguous regulation—a practice commonly referred to as Auer deference.208 In Kisor,
the Supreme Court cabined the scope of Auer deference,209 explaining that deference should not
be “reflexive” and clarifying that courts are obligated “to perform their reviewing and restraining
functions.”210
For Auer deference to apply, a court first must determine that the regulation at issue is “genuinely
ambiguous.”211 In making this determination, a court must use all the available tools of
construction to discern the regulation’s meaning.212 If this endeavor reveals the meaning of the
regulation, “the court must give it effect.”213 If the court determines that the regulation is truly
ambiguous, a court should only defer to an agency’s reasonable interpretation.214
The Kisor Court further explained that not every reasonable agency interpretation is deserving of
judicial deference.215 Certain kinds of interpretations, even if reasonable, should not be accorded
controlling weight. To receive deference, the interpretation must represent the agency’s
203 Id. at 496 (quoting MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 (1994)).
204 5 U.S.C. § 706.
205 As discussed above, after Loper Bright v. Raimondo, courts are required to use independent judgment to determine
the best meaning of any ambiguous statute without deferring to an agency’s interpretation. See supra “Loper Bright
Enterprises v. Raimondo.”
206 Kisor v. Wilkie, 588 U.S. 558, 566 (2019) (“[We b]egin with a familiar problem in administrative law: For various
reasons, regulations may be genuinely ambiguous. They may not directly or clearly address every issue; when applied
to some fact patterns, they may prove susceptible to more than one reasonable reading.”).
207 Auer v. Robbins, 519 U.S. 452, 46 (1997).
208 Kisor, 588 U.S. at 563 (“This Court has often deferred to agencies’ reasonable readings of genuinely ambiguous
regulations. We call that practice Auer deference, or sometimes Seminole Rock deference, after two cases in which we
employed it.”); see also Auer v. Robbins, 519 U.S. 452, 46 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S.
410, 413–14 (1945).
209 Kisor, 588 U.S. at 564.
210 Id. at 573–74.
211 Id. at 574–75 (“[A] court cannot wave the ambiguity flag just because it found the regulation impenetrable on first
read.”).
212 Id. at 575 (stating that courts must consider “the text, structure, history, and purpose of a regulation, in all the ways
it would if it had no agency to fall back on”).
213 Id. at 575–76.
214 Id.; see also Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (stating that a court will not defer
to an agency interpretation that “is plainly erroneous or inconsistent with the regulation.”). The Court in Kisor
explained that, for the agency’s interpretation to be reasonable, “it must come within the zone of ambiguity the court
has identified after employing all its interpretive tools.” Kisor, 588 U.S. at 575–76. That is, a court should use the “text,
structure, [and] history” of the regulation to “establish the outer bounds of permissible interpretation.” Id.
215 Id. at 576.
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authoritative or official position on the matter,216 “implicate the agency’s substantive
expertise,”217 and exhibit “fair and considered judgment.”218 Thus, a court may decline to extend
Auer deference if the agency’s otherwise reasonable interpretation creates an “unfair surprise” to
regulated parties,219 is inconsistent with prior agency interpretations,220 or emanates from a
nonauthoritative source.221 Finally, if an agency regulation simply “parrot[s]” or “paraphrase[s]”
the relevant statutory language, then the agency receives no special authority to interpret the
regulation.222
Although the Supreme Court upheld the Auer deference doctrine in its 2019 Kisor decision, some
commenters question whether the Supreme Court could overrule Auer after the Court’s decision
in Loper Bright.223 As discussed above, the Supreme Court recently overturned the Chevron
doctrine, which required courts to defer to an agency’s reasonable interpretation of an ambiguous
statute, because it conflicted with APA’s command that courts must “decide all relevant questions
of law.”224 It appears that Auer deference may conflict with the APA in a similar manner given the
APA’s direction that courts shall “determine the meaning or applicability of the terms of an
agency action,” which includes regulations.225 If the Court interprets the scope of courts’ review
of regulations under the APA as similar to that of statutes, then the Court might overrule Auer.226
216 Id. at 577 (explaining that agency pronouncements from lower-level staff may not qualify for such deference).
217 Id. at 577–78 (explaining that some questions, such as ones “concerning the award of an attorney’s fee” or clarifying
“a simple common-law property term,” could “fall more naturally into a judge’s bailiwick”).
218 Id. at 579 (citing SmithKline Beecham Corp., 567 U.S. at 155).
219 Id. (citing Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007)).
220 Id. at 579; SmithKline Beecham Corp., 567 U.S. at 155 (noting that if an “agency’s interpretation conflicts with a
prior interpretation” it might indicate that the “interpretation ‘does not reflect the agency’s fair and considered
judgment on the matter in question.’” (quoting Auer v. Robbins, 519 U.S. 452, 462 (1997))). Although an inconsistent
position may indicate that an interpretation does not represent the “fair and considered judgment” of the agency, it does
not necessarily negate judicial deference to the agency’s position. Compare Thomas Jefferson Univ. v. Shalala, 512
U.S. 504, 515 (1994) (noting that an interpretation that contradicts a prior interpretation receives less deference than a
view held consistently), with Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170–71 (2007) (“But as long as
interpretive changes create no unfair surprise . . . the change in interpretation alone presents no separate ground for
disregarding the Department’s present interpretation.”).
221 Kisor, 588 U.S. at 577.
222 Id. at 588 n.5 (citing Gonzales v. Oregon, 546 U.S. 243, 256–57 (2006)).
223 See, e.g., Cass R. Sunstein, Our Marbury: Loper Bright and the Administrative State, 74 DUKE L.J. 1893, 1916 n. 6
(2025) (noting “that Loper Bright sits . . . uneasily with Kisor”); Sean Lyness, Chevron Deference’s Demise Suggests
Auer Won’t Last Much Longer, BLOOMBERG LAW (July 10, 2024), https://news.bloomberglaw.com/us-law-week/
chevron-deferences-demise-suggests-auer-wont-last-much-longer [https://perma.cc/YS8B-SNNR]; but see Thomas E.
Nielsen & Krista A. Stapleford, What Loper Bright Might Portend for Auer Deference, HARVARD LAW REVIEW (July 5,
2024), https://harvardlawreview.org/blog/2024/07/what-loper-bright-might-portend-for-auer-deference/
[https://perma.cc/MTL3-HJTC].
224 Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412, (2024) (“Courts must exercise their independent judgment in
deciding whether an agency has acted within its statutory authority, as the APA requires.”).
225 5 U.S.C. § 706.
226 Since the Court’s decision in Loper Bright, lower courts, though recognizing potential tension between Kisor and
Loper Bright, generally have continued to apply Kisor to agency interpretations of ambiguous regulations. See, e.g.,
United States v. James, 135 F.4th 1329, 1334 n.1 (11th Cir. 2025) (“Although perhaps Loper Bright has the potential to
cast doubt on Kisor and Dupree’s reasoning in future cases, it dealt with agency interpretations of ambiguous statutes,
not agency interpretations of their own regulations.”); United States v. Peralta, No. 23-13647, 2024 WL 4603297, at *2
n.2 (11th Cir. Oct. 29, 2024) (“It’s worth noting, however, that while the Supreme Court mentioned Kisor several times
in Loper Bright, it never said it had overruled it, which is unsurprising since the two cases involve different types of
deference—Loper Bright addressed agency interpretation of statutes, whereas Kisor involved agency interpretation of
its own regulations.”); United States v. Boler, 115 F.4th 316, 322 n.4 (4th Cir. 2024) (noting that the Court’s Loper
(continued...)
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Arbitrary-and-Capricious Review
In addition to ensuring that agencies act within the scope of their statutory authority, courts will
also review agency action to ensure the agency has acted reasonably.227 The APA instructs courts
to “hold unlawful and set aside agency actions, findings, and conclusions found to be arbitrary,
capricious, [or] an abuse of discretion.”228 This “catch-all” provision of the APA applies to factual
determinations made during “informal” proceedings,229 such as notice-and-comment
rulemaking,230 and most other policy determinations an agency makes.231
The seminal Supreme Court decision elaborating the arbitrary-and-capricious standard, Motor
Vehicle Manufacturers Ass’n v. State Farm Auto Mutual Insurance Co., explains that the scope of
this review is “narrow,” as “a court is not to substitute its judgment for that of the agency.”232 That
said, courts will invalidate agency determinations that fail to “examine the relevant data and
articulate a satisfactory explanation for its action including a ‘rational connection between the
facts found and the choice made.’”233 When reviewing that determination, courts must “consider
whether the decision was based on a consideration of the relevant factors and whether there has
been a clear error of judgment.”234 In general, the Court noted, an agency decision is arbitrary
if the agency has relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency expertise. 235
Given the broad scope of federal agency actions that are subject to judicial review, whether an
agency decision is arbitrary and capricious is largely a situation-specific question.
Bright decision “calls into question the viability of Auer deference” but ultimately deciding to apply the Auer deference
doctrine because Loper Bright “did not address the issue of agency interpretations of their own regulations”).
227 Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 16 (2020) (explaining that the APA “requires
agencies to engage in ‘reasoned decisionmaking’” (citing Michigan v. EPA, 576 U.S. 743, 750 (2015))).
228 5 U.S.C. § 706(2)(A).
229 See Assoc. of Data Processing Serv. Orgs., Inc. v. Bd. of Govs. of the Fed. Res. Sys., 745 F.2d 677, 684 (D.C. Cir.
1984) (stating that “the ‘arbitrary or capricious’ provision–is a catchall, picking up administrative misconduct not
covered by the other more specific paragraphs. . . . enabling the courts to strike down, as arbitrary, agency action that is
devoid of needed factual support”).
230 5 U.S.C. § 553.
231 Agency factual findings made during formal proceedings are reviewed under a substantial evidence standard,
5 U.S.C. § 706(2)(E), under which the agency’s findings will be upheld if they are supported by “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB,
340 U.S. 474, 477 (1951) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). However, the difference
in the amount of necessary supporting evidence between this standard and the arbitrary-and-capricious standard appears
nominal. Data Processing, 745 F.2d at 684; Dolan v. Fed. Emergency Mgmt. Agency, No. CIV 23-0869 JB/JFR, 2025
WL 2023315, at *15 (D.N.M. July 18, 2025) (“The APA’s two linguistic formulations amount to a single substantive
standard of review.”). Although formal proceedings must be supported with evidence found within the closed hearing
record, decisions in informal proceedings can be supported with any evidence an agency possessed when it made its
determination. See Safe Extensions, Inc. v. FAA, 509 F.3d 593, 604 (D.C. Cir. 2007).
232 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
233 Id. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
234 Id. (quoting Burlington Truck Lines, 371 U.S. at 168).
235 Id. Courts and commentators often refer to this doctrine as “hard look” review. See, e.g., Thomas J. Miles & Cass R.
Sunstein, The Real World of Arbitrariness Review, 75 U. CHI. L. REV. 761, 763 (2008) (“In its seminal decision in
Motor Vehicle Manufacturers Association v. State Farm Auto Mutual Insurance Co., the Court entrenched hard look
review and clarified its foundations.”).
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The arbitrary-and-capricious standard requires an agency to demonstrate that it engaged in
reasoned decisionmaking when reaching its determination.236 Courts “must judge the propriety of
[an agency’s] action solely by the grounds invoked by the agency,” and they may not create their
own justifications to support an agency’s decision beyond the reasons presented by the agency.237
Further, courts require agencies to provide the “essential facts upon which the administrative
decision was based”238 and explain what justifies their determinations with actual evidence
beyond a “conclusory statement.”239 An agency’s failure to provide an adequate explanation for
its decision will typically result in remand or invalidation of its decision.240
Similarly, a court may find an agency to have acted arbitrarily and capriciously when the agency
fails to provide an adequate response to significant comments raised during notice-and-comment
rulemaking.241 For example, in its 2024 Ohio v. Environmental Protection Agency (EPA) decision,
which stayed implementation of an EPA Clean Air Act rule pending appeal, the Supreme Court
held that the EPA would likely lose on the merits because it likely acted arbitrarily and
capriciously when it failed to adequately respond to a particular public comment when it
implemented its final rule.242
Beyond those circumstances in which courts find that an agency failed to provide an adequate
explanation for its decision, courts may also find the decision itself to be arbitrary and
capricious.243 For example, courts will invalidate agency actions that are the product of
“illogical”244 or inconsistent reasoning.245 In addition, courts will find an agency action to be
arbitrary and capricious if the agency simply failed to consider an important factor relevant to its
action,246 such as the policy effects of its decision247 or vital aspects of the problem in the issue
236 State Farm, 463 U.S. at 52 (“In this case, the agency’s explanation for rescission of the passive restraint requirement
is not sufficient to enable us to conclude that the rescission was the product of reasoned decisionmaking.”); Petroleum
Commc’ns, Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir. 1994).
237 State Farm, 463 U.S. at 43; SEC v. Chenery, 332 U.S. 194, 196 (1947). A reviewing court may, however, uphold a
rule where the agency’s decision is “of less than ideal clarity if the agency’s path may reasonably be discerned.” State
Farm, 463 U.S. at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys. Inc., 419 U.S. 281, 286 (1974)).
238 Seventh Dimension, LLC v. United States, 160 Fed. Cl. 1, 15 (2022) (quoting Bagdonas v. Dep’t of the Treasury, 93
F.3d 422, 426 (7th Cir. 1996)).
239 Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 224 (2016) (“Whatever potential reasons the Department might
have given, the agency in fact gave almost no reasons at all [and] the Department’s conclusory statements do not
suffice to explain its decision.”); Allied-Signal, Inc. v. Nuclear Reg. Comm’n, 988 F.2d 146, 152 (D.C. Cir. 1993).
240 See, e.g., Cboe Futures Exch., LLC v. Sec. & Exch. Comm’n, 77 F.4th 971, 974 (D.C. Cir. 2023) (vacating agency
order after finding agency did not adequately explain the reasons for its decision); Williams Gas Processing-Gulf Coast
Co., L.P. v. FERC, 475 F.3d 319, 329 (D.C. Cir. 2006).
241 See, e.g., Ass’n of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 449 (D.C. Cir. 2012); Int’l Union,
United Mine Workers of Am. v. Mine Safety & Health Admin., 626 F.3d 84, 94 (D.C. Cir. 2010). The D.C. Circuit has
held that “[s]ignificant comments are those ‘which, if true, raise points relevant to the agency’s decision and which, if
adopted, would require a change in an agency’s proposed rule.’” City of Portland v. EPA, 507 F.3d 706, 715 (D.C. Cir.
2007) (emphasis omitted) (quoting Home Box Off., Inc. v. FCC, 567 F.2d 9, 35 n. 58 (D.C. Cir. 1977).
242 Ohio v. EPA, 603 U.S. 279, 293–94 (2024) (“Although commenters posed this concern to EPA during the notice
and comment period . . . EPA offered no reasoned response . . . . As a result, the applicants are likely to prevail on their
argument that EPA’s final rule was not ‘reasonably explained.’” (citations omitted)).
243 See FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021) (“The APA’s arbitrary-and-capricious standard
requires that agency action be reasonable and reasonably explained.”)
244 Am. Fed’n of Gov’t Emps., Local 2924 v. Fed. Lab. Rels. Auth., 470 F.3d 375, 380 (D.C. Cir. 2006).
245 Venetian Casino Resort, L.L.C. v. EEOC, 530 F.3d 925, 934 (D.C. Cir. 2008).
246 Michigan v. EPA, 576 U.S. 743, 751–54 (holding action arbitrary and capricious for failure to consider cost of
regulation).
247 Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1124 (9th Cir. 2012).
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before it.248 Likewise, courts may invalidate or remand a determination to the agency if the
agency decision failed to consider regulatory alternatives that would similarly serve the agency’s
goals249 or provide “less restrictive, yet easily administered” options.250 It bears mention that
courts are sometimes particularly deferential to agencies’ expertise when making predictive
judgments based on scientific or technical determinations.251
Because of the wide range of statutory authorities and agency missions, what counts as a relevant
factor that must be considered by an agency when reaching a decision can be context specific. An
illustrative case is Judulang v. Holder, where the Supreme Court found the Board of Immigration
Appeals’ (BIA’s) policy for deciding whether resident aliens may apply for relief from removal to
be arbitrary and capricious.252 The Court noted that the relevant factors for the BIA to consider
were the “purposes of the immigration laws or the appropriate operation of the immigration
system.”253 Because the BIA failed to root its determination in consideration of such factors and
instead based its policy on an “irrelevant comparison between statutory provisions” unconnected
to the merits of a removal decision or the administration of immigration laws, the Court held that
the agency’s determination was arbitrary and capricious.254
Agencies, of course, often change prior policies in response to changing circumstances or
administrative preferences. In FCC v. Fox Television Stations, Inc., the Supreme Court held that
review under the arbitrary-and-capricious standard is not heightened or more stringent simply
because an agency’s action alters its prior policy.255 An agency must set forth a “reasoned
explanation” for changing course,256 but if the agency’s action is permissible under its authorizing
statute and reasonably supported, then the agency need not show that new policies are better than
old ones.257 In other words, an agency may be authorized to pursue a range of policy outcomes
under its governing statutes, and courts may not scrutinize an agency’s shift in policy more
strictly than other agency decisions.258
248 See, e.g., Ohio, 603 U.S. at 294; Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin.,
429 F.3d 1136, 1147 (D.C. Cir. 2005).
249 Off. of Commc’n of United Church of Christ v. FCC, 779 F.2d 702, 714 (D.C. Cir. 1985); Wilderness Watch, Inc. v.
U.S. Fish & Wildlife Serv., 629 F.3d 1024, 1039 (9th Cir. 2010).
250 Cin. Bell Tel. Co. v. FCC, 69 F.3d 752, 761 (6th Cir. 1995).
251 Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983); Zero Zone, Inc. v. U.S. Dep’t of Energy, 832 F.3d 654,
668 (7th Cir. 2016); Nat. Res. Def. Council v. U.S. Nuclear Regul. Comm’n, 823 F.3d 641, 649 (D.C. Cir. 2016).
252 Judulang v. Holder, 565 U.S. 42, 53 (2011).
253 Id. at 55–56.
254 Id.
255 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009). In ruling that the standard of review when
considering the substance of a rule rescission is no more or less stringent, the Court rejected the Second and D.C.
Circuits’ position that the APA and the Court’s precedent required a more substantial justification when an agency
changes its position. Id. (discussing Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 456–57 (2d Cir. 2007), and
NAACP v. FCC, 682 F.2d 993, 998 (D.C Cir. 1982)). See also Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 225
(2016) (Ginsburg, J., concurring) (emphasizing that “where an agency has departed from a prior position, there is no
‘heightened standard’ of arbitrary-and-capricious review”); California by and through Becerra v. Azar, 950 F.3d 1067,
1096 (9th Cir. 2020) (noting that initial agency positions are “not instantly carved in stone,” and changes in agency
policy therefore are not subject to heightened review).
256 Fox Television, 556 U.S. at 514 (stating that agencies “may not . . . depart from a prior policy sub silentio or simply
disregard rules that are still on the books.”).
257 Id. at 514–15.
258 Id. That said, agencies still must adequately explain the changes when an agency’s “new policy rests upon factual
findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance
interests that must be taken into account.” Id. at 515; Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S.
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Review of Compliance with Procedural Requirements
The APA also provides for judicial review to ensure compliance with procedures required by
law.259 Consequently, assuming that a court is otherwise authorized to adjudicate a case,260
individuals aggrieved by agency conduct may challenge an agency’s failure to comply with
required procedures established in the APA, agency regulations, or another applicable statute.261
Although courts may invalidate an agency action if the agency fails to comply with mandated
procedures, the Supreme Court has consistently ruled that courts may not add to the procedural
requirements imposed on agencies.262 For example, prior to the Court’s 2015 decision in Perez v.
Mortgage Bankers Association, certain lower courts had imposed a requirement that agencies
undergo notice-and-comment procedures to change an interpretive rule under certain
circumstances.263 The APA, however, exempts interpretive rules from these procedures.264 The
Court held that the lower court’s “doctrine is contrary to the clear text of the APA’s rulemaking
provisions, and it improperly imposes on agencies an obligation beyond the ‘maximum
procedural requirements’ specified in the APA.” The Court emphasized that the APA “sets forth
the full extent of judicial authority to review executive agency action for procedural
correctness.”265
The APA itself imposes various procedural requirements on agencies when they take particular
actions.266 Many procedural challenges arising under the APA center around an agency’s
compliance with the APA’s informal rulemaking requirements for promulgating legislative
rules.267 In brief, those requirements require an agency to publish a notice of the proposed rule in
the Federal Register and provide “interested persons” an opportunity to comment on the
1, 30–33 (2020) (holding recission of the Deferred Action for Childhood Arrivals initiative to be arbitrary and
capricious when agency failed to consider “serious reliance interests” that the long-standing policy may have
engendered). This requirement, however, does not stem from the change itself; rather, it derives from the need for a
“reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior
policy.” Fox Television, 556 U.S. at 516.
259 5 U.S.C. § 706(2)(D).
260 See supra “Requirements for Judicial Review.”
261 5 U.S.C. § 706(2)(D).
262 Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 100 (2015); Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def.
Council, Inc., 435 U.S. 519, 548 (1978). Although agencies enjoy discretion to develop and apply their own procedures
that supplement the APA’s requirements, courts lack authority to impose additional requirements upon agencies.
Vermont Yankee, 435 U.S. at 544 (noting “the very basic tenet of administrative law that agencies should be free to
fashion their own rules of procedure”).
263 Perez, 575 U.S. at 99 (describing D.C. Circuit doctrine formulated by Paralyzed Veterans of America. v. D.C. Arena
L.P., 117 F.3d 579 (D.C. Cir. 1997), whereby courts require agencies that change certain interpretive rules to undergo
notice-and-comment rulemaking).
264 5 U.S.C. § 553(b)(A).
265 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009).
266 5 U.S.C. §§ 553–554, 556–557. In general, under the APA, every agency action falls into one of four categories:
(1) formal rulemaking, (2) informal rulemaking, (3) formal adjudication, or (4) informal adjudication. See Aaron L.
Nielson, D.C. Circuit Review – Reviewed: 73 Years of APA Evolution (In One Chart), YALE J. ON REG.: NOTICE &
COMMENT (Dec. 6, 2019), https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-73-years-of-apa-evolution-in-onechart/ [https://perma.cc/5VYN-55H5]. The APA outlines procedures for each of these types of actions. See 5 U.S.C. §§
553–557. Further, the APA provides an avenue for review for other potentially applicable procedural statutes and
regulations. 5 U.S.C. § 706(2)(D) (providing for review of compliance with “procedure required by law”). Thus,
procedural challenges are myriad. This report focuses on common challenges to the notice-and-comment rulemaking
process of 5 U.S.C. § 553.
267 5 U.S.C. § 553.
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proposed rule.268 After consideration of the comments, if the agency elects to issue the rule, the
agency must publish the final rule in the Federal Register along with a “concise general
statement” of the rule’s “basis and purpose.”269 The notice must “‘fairly apprise interested
persons’ of the nature of the rulemaking.”270 Similarly, the logical outgrowth test provides that the
final rule cannot differ so greatly from the proposed rule that regulated parties, caught by
surprise, are denied an opportunity to meaningfully participate in the rulemaking.271 Courts will
also set aside a rule if an agency fails to provide a comment period for a legislative rule.272
However, an agency may forgo the notice-and-comment requirements of the APA if it has good
cause to find that the procedures would be “impracticable, unnecessary, or contrary to the public
interest.”273
Conclusion
The Constitution confers upon Congress expansive authority to define the jurisdiction of federal
courts, determine the types of agency actions subject to judicial review, and subject agencies to
certain procedural requirements when implementing their statutory authority. Important
constitutional and statutory limits also determine when a federal court may render a decision. One
of the most prominent statutory bases of judicial review of agency action is the Administrative
Procedure Act. Judicial interpretation of the APA’s provisions plays a central role in determining
what types of agency actions are subject to review in federal court. These developments are,
nonetheless, subject to future modification by Congress, which enjoys authority to alter the APA
or any other statute to shape the contours of judicial review of agency action.
268 Id. § 553(b), (c).
269 Id. § 553(c).
270 United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980) (quoting Am. Iron
& Steel Inst. V. EPA, 568 F.2d 284, 293 (3d Cir. 1977); MCI Telecomm. Corp. v. FCC, 57 F.3d 1136, 1142 (D.C. Cir.
1995) (holding notice inadequate when information stating that certain parties would be subject to rule was found in a
footnote in the proposed rule).
271 See Citizens for Better Forestry v. U.S. Dep’t of Agric., 481 F. Supp. 2d 1059, 1073 (N.D. Cal. 2007).
272 See Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002) (ruling that a guidance document issued by the EPA
that advised the public of how to engage in risk assessments in order to comply with EPA regulations qualified as a
legislative rule and should have been promulgated pursuant to notice-and-comment procedures). Procedural challenges
often stem from when an agency issues a publication without providing opportunity to comment because the agency
presents it as guidance, which is exempt from notice-and-comment requirements 5 U.S.C. § 553(b)(A). If a court
determines that the issued publication is actually a legislative rule, then the court will require the agency to undergo
Section 553 procedures. See, e.g., Chamber of Com. v. Dep’t of Labor, 174 F.3d 206, 212 (D.C. Cir. 1999) (holding
that a directive issued by the Occupational Safety and Health Administration that specified that certain industries would
be subject to inspection absent adoption of specific procedures was a legislative rule). For a discussion on guidance
documents and judicial review, see Bowers, Agency Use of Guidance Documents, supra note 129.
273 5 U.S.C. § 553(b)(B). A court will review an agency’s findings and require the agency to undergo notice and
comment procedures if the court finds the agency lacked good cause to skip the procedural requirements. See, e.g.,
Mack Trucks, Inc. v. EPA, 682 F.3d 87, 90–91 (2012) (vacating and remanding agency rule issued without notice and
comment because “EPA lacked good cause”). For a discussion of the APA’s good cause exception, see CRS Report
R44356, The Good Cause Exception to Notice and Comment Rulemaking, by Andrew S. Coghlan (2025).
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Author Information
Daniel T. Shedd
Legislative Attorney
Jared P. Cole
Legislative Attorney
Disclaimer
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.