Statutory and Nonstatutory Bases of Jurisdiction for Judicial Review

Judicial review is the power given to the courts to examine the actions of the legislative, executive, and administrative spheres of the government.  It also determines whether such actions are consistent with the Constitution.

Basically, there are two types of judicial review of administrative actions, statutory and nonstatutory.  In statutory review, Congress explicitly authorizes review of specified administrative actions.  However, statutory review does not always provide an adequate remedy.  Nonstatutory review, in the administratve context, is based upon a statute that does not explicitly refer to an administrative action.

Generally, review of federal agency action is specifically authorized by the enabling statute of the agency.  At the same time, a statute can contain express language establishing legislative intent to preclude judicial review of agency actions under a statute.

In Califano v. Sanders, 430 U.S. 99 (U.S. 1977), it was observed that the Administrative Procedure Act does not provide federal jurisdiction.  However, to what extent a statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, objectives, legislative history, and the nature of the administrative action involved.[i]

State legislative practice also provides judicial review for administrative adjudications.  Statutory review generally precludes nonstatutory review either expressly or impliedly.  There is no right to judicial review of an administrative order unless a statute provides a right or unless the order adversely affects a vested property right or otherwise violates a constitutional right.[ii]

[i] New York Univ. v. Autodesk, Inc., 466 F. Supp. 2d 563 (S.D.N.Y. 2006)

[ii] Carlson v. City of Houston, 2010 Tex. App. LEXIS 1157 (Tex. App. Houston 14th Dist. Feb. 18, 2010)


Inside Statutory and Nonstatutory Bases of Jurisdiction for Judicial Review