Instituting Proceedings

If the appeal for judicial review of agency decision is under a state administrative procedure act, it can be taken in the manner provided by law for appeals in civil cases.  And so, the judgment delivered or final order entered by the district court can be affirmed, reversed, vacated, or modified for errors appearing on the record, or the case can be remanded for further proceedings.[i]

The procedure for the review of an agency decision can be governed by any of the following laws depending upon the nature of a particular case.

  • The Hobbs Act.
  • The Federal Rules of Appellate Procedure – These are specifically applicable to review proceedings with respect to administrative law.  These rules have clear suggestions regarding administrative review.  One rule provides that other rules will not apply to the review or enforcement of an agency order.[ii]
  • The Administrative Procedure Act – The Act authorizes an action for review of final agency action in the district courts to the extent that other statutory procedures for review of final administrative action are insufficient.[iii]

Generally, judicial review of a state agency’s action is commenced when the aggrieved party files a petition for review or a copy or the original of a notice of appeal in the appropriate court.[iv]  Usually the petition for judicial review must be filed with the clerk of the court and the petitioner can seek any type of relief available under the applicable statute.  In order for jurisdiction to be conferred upon the court all the statutory jurisdictional requirements must be satisfied.[v]  Further, the court has jurisdiction to decide on an appeal from an agency decision under any state administrative procedure act only if, the party appealing files a petition for review in the proper court and serves the petition on all the parties.[vi]

However, it is possible that an appellant need not necessarily file a notice of appeal with the agency clerk within the time limit for filing an appeal.  Not all requirements for the filing notices of appeal or a petition for review are jurisdictional prerequisites.  Therefore, an irregularity can but need not mandatorily, warrant the dismissal of an appeal.

Further, judicial review of federal administrative action is initiated in the courts of appeal by petition[vii] and in the federal district courts by complaint.  In the federal district courts review can also be attained under the Administrative Procedure Act by filing a counterclaim.

The petition for appellate review must contain[viii]:

  1. the contact details of the petitioner;
  2. the contact details of the agency whose action is at issue;
  3. an identification of the agency action at issue;
  4. a duplicate copy, summary, or brief description of the agency action;
  5. an identification of persons who were parties in any adjudicative proceedings that led to the agency action;
  6. facts to demonstrate that the petitioner is entitled to obtain judicial review;
  7. the petitioner’s reasons for believing that relief should be granted; and
  8. a request for relief, specifying the type and extent of relief requested.

Moreover, a petition for review of administrative action in a court of appeals must name each party seeking review.  Likewise, a complaint in a federal district court must contain the names of the parties to the action.  If two or more persons are permitted to petition the same court for review of the same order then they can file a joint petition if their interests are such as to make joinder practicable.[ix]

Another important requirement for a court to obtain subject matter jurisdiction over an administrative review is the proper service of a petition for judicial review.  When an appeal from an agency decision is taken, all parties must be served with the petition and the failure to comply with the service requirement calls for dismissal of the action.

The general rule is that a petition for review in state courts must be filed within 30 days after the final decision of the agency, or, if a rehearing is requested, within 30 days after the decision for rehearing is made.[x]  This can be changed according to the applicable statutes and the jurisdiction where petition of review is made.  A petition for review of agency action in a court of appeals must be filed within the time prescribed by Fed. R. App. P. 15(a)(1).[xi]  The time for filing petition for judicial review starts from the day the final agency order is issued and not the day on which the order becomes effective.

[i] Twiss v. Trautwein, 247 Neb. 535, 536 (Neb. 1995)

[ii] USCS Fed Rules App Proc R 20

[iii] 5 USCS § 703 and 5 USCS § 704

[iv] Franchi v. Fla. Dep’t of Commerce, Div. of Employment Secur., Bd. of Review, 375 So. 2d 1154, 1157 (Fla. Dist. Ct. App. 4th Dist. 1979)

[v] Mulenex v. Dep’t of Employment Sec., 47 Wn. App. 486, 487 (Wash. Ct. App. 1987)

[vi] Cheek v. Employment Sec. Dep’t, 107 Wn. App. 79, 83 (Wash. Ct. App. 2001)

[vii] 28 USCS § 2344

[viii] Model Administrative Procedure Act of 1981

[ix] Fed. R. App. P. 15(a)(1)

[x] Model State Administrative Procedure Act (1961 ed) § 15(b)

[xi] USCS Fed Rules App Proc R 15


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