Judicial review of agency

5 U.S.C. 1009

Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion

(a) Right of review. Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.

(b) Form and venue of proceedings.-The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute, or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction. Agency action shall be subject to judicial review in civil or criminal proceedings for judicial enforcement except to the extent that prior, adequate, and exclusive opportunity for such review is provided by law.

(c) Reviewable acts.-Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review. Any preliminary, procedural, or intermediate agency action or ruling not directly reviewable shall be subject to review upon the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final shall be final for the purposes of this subsection whether or not there has been presented or determined any application for a declaratory order, for any form of reconsideration, or (unless the agency otherwise requires by rule and provides that the action meanwhile shall be inoperative) for an appeal to superior agency authority.

(d) Relief pending review.-Pending judicial review any agency is authorized, where it finds that justice so requires, to postpone the effective date of any action taken by it. Upon such conditions as may be required and to the extent necessary to prevent irreparable injury, every reviewing court (including every court to which a case may be taken on appeal from or upon application for certiorari or other writ to a reviewing court) is authorized to issue all necessary and appropriate process to postpone the effective date of any agency action or to preserve status or rights pending conclusion of the review proceedings.

(e) Scope of review. So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) un

supported by substantial evidence in any case subject to the requirements of sections 1006 and 1007 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error.

Appointment of examiners

5 U.S.C. 1010

Subject to the civil-service and other laws to the extent not inconsistent with this chapter, there shall be appointed by and for each agency as many qualified and competent examiners as may be necessary for proceedings pursuant to sections 1006 and 1007 of this title who shall be assigned to cases in rotation so far as practicable and shall perform no duties inconsistent with their duties and responsibilities as examiners. Examiners shall be removable by the agency in which they are emploved only for good cause established and determined by the Civil Service Commission (hereinafter called the Commission) after opportunity for hearing and upon the record thereof. Examiners shall receive compensation prescribed by the Commission independently of agency recommendations or ratings and in accordance with the Classification Act of 1949, except that the provisions of paragraphs (2) and (3) of subsection (b) of section 667 of this title, and the provisions of section 669 of this title, shall not be applicable. Agencies occasionally or temporarily insufficiently staffed may utilize examiners selected by the Commission from and with the consent of other agencies. For the purposes of this section, the Commission is authorized to make investigations, require reports by agencies, issue reports, including an annual report to the Congress, promulgate rules, appoint such advisory committees as may be deemed necessary, recommend legislation, subpena witnesses or records, and pay witness fees as established for the United States courts.

Impairment of rights; effect on other laws

5 U.S.C. 1011

Nothing in this chapter shall be held to diminish the constitutional rights of any person or to limit or repeal additional requirements. imposed by statute or otherwise recognized by law. Except as otherwise required by law, all requirements or privileges relating to evidence or procedure shall apply equally to agencies and persons. If any provision of this chapter or the application thereof is held invalid, the remainder of this chapter or other applications of such provision shall not be affected. Every agency is granted all authority necessary to comply with the requirements of this chapter through the issuance of rules or otherwise. No subsequent legislation shall be held to supersede or modify the provisions of this chapter except to the extent that such legislation shall do so expressly.

Documents to be published in Federal Register

44 U.S.C. 305

(a) Proclamations and Executive Orders; documents having general applicability and legal effect; documents required to be published by Congress.

There shall be published in the Federal Register (1) all Presidential proclamations and Executive Orders, except such as have no general applicability and legal effect or are effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof; (2) such documents or classes of documents as the President shall determine from time to time have general applicability and legal effect; and (3) such documents or classes of documents as may be required so to be published by Act of the Congress: Provided, That for the purposes of this chapter every document or order which shall prescribe a penalty shall be deemed to have general applicability and legal effect.

(b) Documents authorized to be published by regulations; comments and news items excluded.

In addition to the foregoing there shall also be published in the Federal Register such other documents or classes of documents as may be authorized to be published pursuant hereto by regulations prescribed hereunder with the approval of the President, but in no case shall comments or news items of any character whatsoever be authorized to be published in the Federal Register.

(c) Suspension of requirements for filing of documents; alternate systems for promulgating, filing or publishing documents; preservation of originals.

In the event of an attack or threatened attack upon the continental United States, by air or otherwise, and a determination by the President that as a result of such attack or threatened attack (i) publication of the Federal Register or filing of documents with the Division is impracticable, or (ii) under existing conditions publication in the Federal Register would not serve to give appropriate notice to the public of the contents of documents, the President may, without regard to the provisions of this chapter or of the Administrative Procedure Act, or of any other provision of law, suspend all or any part of the requirements of law or regulation for filing with the Division or publication in the Federal Register of all or any documents or classes of documents. Such suspensions shall remain in effect until revoked by the President, or by concurrent resolution of the Congress. The President shall establish such alternate systems for promulgating, filing, or publishing documents or classes of documents affected by such suspensions, including requirements relating to their effectiveness or validity, as may be deemed under the then existing circumstances practicable to provide public notice of the issuance and of the contents of such documents. Such alternate systems may, without limitation, make provision for the use of regional or specialized publications or depositories for documents, or of the press, the radio, or similar mediums of general communication. Compliance with such alternate systems of filing or publication shall have the same force and effect as filing with the Division or publication in the Federal Register

763-778 0-65- -3

pursuant to the provisions of this chapter or of any other Act, or of any regulation. With respect to documents promulgated under such alternate systems, each agency shall preserve the original and two duplicate originals or two certified copies thereof for filing with the Division when the President determines that it is practicable to do so. (July 26, 1935, ch. 417, § 5, 49 Stat. 501; June 25, 1956, ch. 444, 70 Stat. 337.)

Filing document as constructive notice; publication in Register as presumption of validity; judicial notice; citation

44 U.S.C. 307

No document required under section 305 (a) of this title to be published in the Federal Register shall be valid as against any person who has not had actual knowledge thereof until the duplicate originals or certified copies of the document shall have been filed with the Division and a copy made available for public inspection as provided in section 302 of this title; and, unless otherwise specifically provided by statute, such filing of any document, required or authorized to be published under section 305 of this title, shall, except in cases where notice by publication is insufficient in law, be sufficient to give notice of the contents of such document to any person subject thereto or affected thereby. The publication in the Federal Register of any document shall create a rebuttable presumption (a) that it was duly issued, prescribed, or promulgated; (b) that it was duly filed with the Division and made available for public inspection at the day and hour stated in the printed notation; (c) that the copy contained in the Federal Register is a true copy of the original; and (d) that all requirements of this chapter and the regulations prescribed hereunder relative to such document have been complied with. The contents of the Federal Register shall be judicially noticed and, without prejudice to any other mode of citation, may be cited by volume and page number. (July 26, 1935, ch. 417, § 7, 49 Stat. 502.)

Publication in Register as notice of hearing

44 U.S.C. 308

Whenever notice of hearing or of opportunity to be heard is required or authorized to be given by or under an Act of the Congress, or may otherwise properly be given, the notice shall be deemed to have been duly given to all persons residing within the continental United States (not including Alaska), except in cases where notice by publication is insufficient in law, if said notice shall be published in the Federal Register at such time that the period between the publication and the date fixed in such notice for the hearing or for the termination of the opportunity to be heard shall be (a) not less than the time specifically prescribed for the publication of the notice by the appropriate Act of the Congress; or (b) not less than fifteen days when no time for publication is specifically prescribed by the Act, without prejudice, however, to the effectiveness of any notice of less than fifteen days where such shorter period is reasonable. (July 26, 1935, ch. 417, § 8, 49 Stat. 502.)

Federal Register annual supplements; style and composition; application to Code of Federal Regulations

44 U.S.C. 311

(a) The Administrative Committee of the Federal Register is authorized, with the approval of the President, to require, from time to time as it may deem necessary, the preparation and publication in special or supplemental editions of the Federal Register of complete codifications of the documents of each agency of the Government which have general applicability and legal effect, which have been issued or promulgated by such agency by publication in the Federal Register or by filing with the Committee, and which are relied upon by the agency as authority for, or are invoked or used by it in the discharge of, its activities or functions, and are in force and in effect as to facts arising on or after such dates as may be specified by the Committee.

(b) Any codification published pursuant to subsection (a) of this section shall be printed and bound in permanent form and shall be designated as the "Code of Federal Regulations." The Committee shall regulate the binding of the printed codifications into separate books with a view to practical usefulness and economical manufacture. Each book shall contain an explanation of its coverage and such other aids to users as the Committee may require or authorize. A general index to the entire Code of Federal Regulations shall be separately printed and bound.

(c) The Committee shall regulate the supplementation and the collation and republication of the printed codifications with a view to keeping the Code of Federal Regulations as current as practicable: Provided, That each book shall be either supplemented or collated and republished at least once each calendar year.

(d) The Office of the Federal Register shall prepare and publish the codifications, supplements, collations, and indexes authorized by this section.

(e) The codified documents of the several agencies published in the supplemental edition of the Federal Register pursuant to the provisions of this section, as amended by documents subsequently filed with the Division and published in the daily issues of the Federal Register, shall be prima facie evidence of the text of such documents and of the fact that they are in full force and effect on and after the date of publication.

(f) The Administrative Committee of the Federal Register shall prescribe, with the approval of the President, regulations for carrying out the provisions of this section.

(g) Nothing in this section shall be construed to require codification of the text of Presidential documents published and periodically compiled in supplements to title 3 of the Code of Federal Regulations.