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Scope of Review

According to the judicial review provisions of the Administrative Procedure Act, an agency action for which there exists no remedy in a court can be reviewed by statute and final agency action.[i]  Generally, a matter is not considered for a judicial review, if the agency is studying whether to take action upon that matter.  Therefore, prior to final agency action, agency orders are not reviewable.

The reviewing court must set aside agency actions if they are:[ii]

  • Arbitrary, capricious, an abuse of discretion, not according with law;
  • Contrary to constitutional right, power, privilege, or immunity;
  • In excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
  • Without observance of procedure required by law;
  • Unsupported by substantial evidence;
  • Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

The judicial, quasi judicial, adjudicatory, legislative, executive, and administrative classifications can affect the scope and extent of judicial review and mode of review.  A particular action’s judicial nature is an essential to determine the scope of the judicial power under the constitution.  Therefore, a court can review the action of an administrative agency with or without express authorization.[iii]

However, the scope of review of delegated legislative or quasi legislative power is different and more limited than where the action is quasi judicial.  In determining the scope of the review by courts of quasi legislative acts, consideration must be given to the fact that the courts must not usurp legislative power and violate the separation of powers provision of the Constitution.[iv]

The legislature provides for judicial review of the orders of administrative agencies and make sure that the agencies remain within the bounds created by the legislature.  Administrative agencies can decide whether or not to create rules upon their wide discretion.  When an agency decides not to create any rule, the court reviewing the decision has to only make sure that the agency did not create any rule just to avoid the dangers of arbitrariness and irrationality.

However, the judicial review provisions of the Administrative Procedure Act are not applicable if a statute excludes the review.  Likewise, a state can also statutorily exclude an agency from the administrative review process.

[i] 5 USCS § 701-706

[ii] 5 USCS § 706

[iii] Save Hatton Canyon v. Skinner, 1991 U.S. Dist. LEXIS 6627 (N.D. Cal. Apr. 25, 1991)

[iv] Western States Petroleum Assn. v. Superior Court, 9 Cal. 4th 559 (Cal. 1995)

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