28 May 1998
Source:
http://www.access.gpo.gov/su_docs/aces/aaces002.html
Thanks to David Sweigert
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 16, 1996]
[Document not affected by Public Laws enacted between
January 16, 1996 and August 28, 1996]
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I--THE AGENCIES GENERALLY
CHAPTER 7--JUDICIAL REVIEW
Sec. 701. Application; definitions
Sec. 702. Right of review
Sec. 703. Form and venue of proceeding
Sec. 704. Actions reviewable
Sec. 705. Relief pending review
Sec. 706. Scope of review
Sec. 701. Application; definitions
(a) This chapter applies, according to the provisions thereof,
except to the extent that--
(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion by law.
(b) For the purpose of this chapter--
(1) ``agency'' means each authority of the Government of the
United States, whether or not it is within or subject to review by
another agency, but does not include--
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the
United States;
(D) the government of the District of Columbia;
(E) agencies composed of representatives of the parties or
of representatives of organizations of the parties to the
disputes determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field in time of war
or in occupied territory; or
(H) functions conferred by sections 1738, 1739, 1743, and
1744 of title 12; chapter 2 of title 41; subchapter II of
chapter 471 of title 49; or sections 1884, 1891-1902, and former
section 1641(b)(2), of title 50, appendix; and
(2) ``person'', ``rule'', ``order'', ``license'', ``sanction'',
``relief'', and ``agency action'' have the meanings given them by
section 551 of this title.
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 103-272,
Sec. 5(a), July 5, 1994, 108 Stat. 1373.)
Historical and Revision Notes
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Revised Statutes and
Derivation U.S. Code Statutes at Large
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(a)................ 5 U.S.C. 1009 (introductory June 11, 1946, ch.
clause). 324, Sec. 10
(introductory
clause), 60 Stat.
243.
------------------------------------------------------------------------
In subsection (a), the words ``This chapter applies, according to
the provisions thereof,'' are added to avoid the necessity of repeating
the introductory clause of former section 1009 in sections 702-706.
Subsection (b) is added on authority of section 2 of the Act of June
11, 1946, ch. 324, 60 Stat. 237, as amended, which is carried into
section 551 of this title.
In subsection (b)(1)(G), the words ``or naval'' are omitted as
included in ``military''.
In subsection (b)(1)(H), the words ``functions which by law expire
on the termination of present hostilities, within any fixed period
thereafter, or before July 1, 1947'' are omitted as executed. Reference
to the ``Selective Training and Service Act of 1940'' is omitted as that
Act expired on Mar. 31, 1947. Reference to the ``Sugar Control Extension
Act of 1947'' is omitted as that Act expired on Mar. 31, 1948.
References to the ``Housing and Rent Act of 1947, as amended'' and the
``Veterans' Emergency Housing Act of 1946'' have been consolidated as
they are related. The reference to former section 1641(b)(2) of title
50, appendix, is retained notwithstanding its repeal by Sec. 111(a)(1)
of the Act of Sept. 21, 1961, Pub. L. 87-256, 75 Stat. 538, since
Sec. 111(c) of the Act provides that a reference in other Acts to a
provision of law repealed by Sec. 111(a) shall be considered to be a
reference to the appropriate provisions of Pub. L. 87-256.
Standard changes are made to conform with the definitions applicable
and the style of this title as outlined in the preface to the report.
References in Text
Sections 1891-1902 of title 50, appendix, referred to in subsec.
(b)(1)(H), were omitted from the Code as executed.
Amendments
1994--Subsec. (b)(1)(H). Pub. L. 103-272 substituted ``subchapter II
of chapter 471 of title 49; or sections'' for ``or sections 1622,''.
Cross References
Atomic Energy Community Act of 1955, administrative review only, see
section 2309 of Title 42, The Public Health and Welfare.
Section Referred to in Other Sections
This section is referred to in title 2 sections 501, 502; title 7
sections 1508, 2143; title 16 section 839f; title 18 sections 843, 3625;
title 20 section 1683; title 25 section 954; title 30 section 956; title
41 section 422; title 42 sections 5405, 6105, 6976; title 50 App.
section 2412.
Sec. 702. Right of review
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof. An action in a
court of the United States seeking relief other than money damages and
stating a claim that an agency or an officer or employee thereof acted
or failed to act in an official capacity or under color of legal
authority shall not be dismissed nor relief therein be denied on the
ground that it is against the United States or that the United States is
an indispensable party. The United States may be named as a defendant in
any such action, and a judgment or decree may be entered against the
United States: Provided, That any mandatory or injunctive decree shall
specify the Federal officer or officers (by name or by title), and their
successors in office, personally responsible for compliance. Nothing
herein (1) affects other limitations on judicial review or the power or
duty of the court to dismiss any action or deny relief on any other
appropriate legal or equitable ground; or (2) confers authority to grant
relief if any other statute that grants consent to suit expressly or
impliedly forbids the relief which is sought.
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94-574, Sec. 1,
Oct. 21, 1976, 90 Stat. 2721.)
Historical and Revision Notes
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Revised Statutes and
Derivation U.S. Code Statutes at Large
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5 U.S.C. 1009(a). June 11, 1946, ch.
324, Sec. 10(a), 60
Stat. 243.
------------------------------------------------------------------------
Standard changes are made to conform with the definitions applicable
and the style of this title as outlined in the preface to the report.
Amendments
1976--Pub. L. 94-574 removed the defense of sovereign immunity as a
bar to judicial review of Federal administrative action otherwise
subject to judicial review.
Section Referred to in Other Sections
This section is referred to in title 2 sections 501, 502; title 7
section 2143; title 16 section 839f; title 18 sections 843, 3625; title
19 section 1677c; title 25 section 954; title 28 section 2631; title 41
section 422; title 42 section 5405; title 43 section 1337; title 50 App.
sections 16, 2412.
Sec. 703. Form and venue of proceeding
The form of proceeding for judicial review is the special statutory
review proceeding relevant to the subject matter in a 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 a court of
competent jurisdiction. If no special statutory review proceeding is
applicable, the action for judicial review may be brought against the
United States, the agency by its official title, or the appropriate
officer. Except to the extent that prior, adequate, and exclusive
opportunity for judicial review is provided by law, agency action is
subject to judicial review in civil or criminal proceedings for judicial
enforcement.
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94-574, Sec. 1,
Oct. 21, 1976, 90 Stat. 2721.)
Historical and Revision Notes
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Revised Statutes and
Derivation U.S. Code Statutes at Large
------------------------------------------------------------------------
5 U.S.C. 1009(b). June 11, 1946, ch.
324, Sec. 10(b), 60
Stat. 243.
------------------------------------------------------------------------
Standard changes are made to conform with the definitions applicable
and the style of this title as outlined in the preface to the report.
Amendments
1976--Pub. L. 94-574 provided that if no special statutory review
proceeding is applicable, the action for judicial review may be brought
against the United States, the agency by its official title, or the
appropriate officer as defendant.
Section Referred to in Other Sections
This section is referred to in title 2 sections 501, 502; title 7
section 2143; title 16 section 839f; title 18 sections 843, 3625; title
25 section 954; title 41 section 422; title 42 section 5405; title 50
App. section 2412.
Sec. 704. Actions reviewable
Agency action made reviewable by statute and final agency action for
which there is no other adequate remedy in a court are subject to
judicial review. A preliminary, procedural, or intermediate agency
action or ruling not directly reviewable is subject to review on the
review of the final agency action. Except as otherwise expressly
required by statute, agency action otherwise final is final for the
purposes of this section whether or not there has been presented or
determined an application for a declaratory order, for any form of
reconsideration, or, unless the agency otherwise requires by rule and
provides that the action meanwhile is inoperative, for an appeal to
superior agency authority.
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392.)
Historical and Revision Notes
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Revised Statutes and
Derivation U.S. Code Statutes at Large
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5 U.S.C. 1009(c). June 11, 1946, ch.
324, Sec. 10(c), 60
Stat. 243.
------------------------------------------------------------------------
Standard changes are made to conform with the definitions applicable
and the style of this title as outlined in the preface of this report.
Section Referred to in Other Sections
This section is referred to in title 2 sections 501, 502; title 7
section 2143; title 15 sections 78l, 78ccc; title 16 section 839f; title
18 sections 843, 3625; title 25 section 954; title 41 section 422; title
42 sections 5405, 7174, 7194; title 50 App. section 2412.
Sec. 705. Relief pending review
When an agency finds that justice so requires, it may postpone the
effective date of action taken by it, pending judicial review. On such
conditions as may be required and to the extent necessary to prevent
irreparable injury, the reviewing court, including the court to which a
case may be taken on appeal from or on application for certiorari or
other writ to a reviewing court, may issue all necessary and appropriate
process to postpone the effective date of an agency action or to
preserve status or rights pending conclusion of the review proceedings.
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.)
Historical and Revision Notes
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Revised Statutes and
Derivation U.S. Code Statutes at Large
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5 U.S.C. 1009(d). June 11, 1946, ch.
324, Sec. 10(d), 60
Stat. 243.
------------------------------------------------------------------------
Standard changes are made to conform with the definitions applicable
and the style of this title as outlined in the preface of this report.
Section Referred to in Other Sections
This section is referred to in title 2 sections 501, 502; title 7
section 2143; title 15 sections 78y, 1262, 1474, 3416; title 16 sections
839f, 1855, 3636; title 18 sections 843, 3625; title 25 section 954;
title 41 section 422; title 42 sections 5405, 7172; title 50 App.
section 2412.
Sec. 706. Scope of review
To the extent necessary to decision and when 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 an agency action. The reviewing court
shall--
(1) compel agency action unlawfully withheld or unreasonably
delayed; and
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be--
(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
sections 556 and 557 of this title 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.
In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be
taken of the rule of prejudicial error.
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.)
Historical and Revision Notes
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Revised Statutes and
Derivation U.S. Code Statutes at Large
------------------------------------------------------------------------
5 U.S.C. 1009(e). June 11, 1946, ch.
324, Sec. 10(e), 60
Stat. 243.
------------------------------------------------------------------------
Standard changes are made to conform with the definitions applicable
and the style of this title as outlined in the preface of this report.
Abbreviation of Record
Pub. L. 85-791, Aug. 28, 1958, 72 Stat. 941, which authorized
abbreviation of record on review or enforcement of orders of
administrative agencies and review on the original papers, provided, in
section 35 thereof, that: ``This Act [enacting section 2112 of Title 28,
Judiciary and Judicial Procedure, and amending sections 1036 and 1037(c)
of former Title 5 [now sections 2346 and 2347(c) of Title 28], sections
8, 9, 193(c), 194(b)-(d), (h), 1115(c), 1599(c), 1600, and 1601 of Title
7, Agriculture, section 1848 of Title 12, Banks and Banking, sections
21, 45(b)-(d), 77i(a), 78y(a), 79x(a), 80a-42(a), 80b-13(a), and
717r(a), (b) of Title 15. Commerce and Trade, section 825l(a), (b) of
Title 16, Conservation, sections 81r(c) and 1641(b) of Title 19, Customs
Duties, section 277(b) of Title 20, Education, sections 346a(i)(2), (3),
371(f)(1), (3) of Title 21, Food and Drugs, section 1631f(b) of Title
22, Foreign Relations and Intercourse, section 204(h), Title 27,
Intoxicating Liquors, sections 160(d)-(f) and 210(a) of Title 29, Labor,
section 576 of former Title 39, The Postal Service, section 291j(b)(1),
(2) of Title 42, Public Health and Welfare, section 315(f) of Title 45,
Railroads, section 1181(b) of Title 46, Appendix, Shipping, section
402(d) of Title 47, Telegraphs, Telephones, and Radiotelegraphs, section
646(c) of former Title 49, Transportation, and sections 793(a), 820(e),
821(c), (d) of Title 50, War and National Defense] shall not be
construed to repeal or modify any provision of the Administrative
Procedure Act.''
Cross References
Federal Communications Commission proceedings, applicability of
section to, see section 402 of Title 47, Telegraphs, Telephones, and
Radiotelegraphs.
Section Referred to in Other Sections
This section is referred to in section 7123 of this title; title 2
sections 501, 502, 1409, 1571; title 7 section 2143; title 11 section
1172; title 12 sections 1701q-1, 1723i, 1735f-14, 1735f-15, 3105; title
15 sections 57a, 78y, 1262, 1474, 2618, 5408; title 16 sections 773f,
839f, 973f, 1379, 1855, 1858, 2437, 3142, 3636, 5010, 5507; title 18
sections 843, 3625; title 19 section 1337; title 22 section 4140; title
25 section 954; title 28 section 2640; title 29 sections 727, 1813,
1853; title 30 sections 956, 1462; title 39 section 3628; title 41
section 422; title 42 sections 608, 3545, 5405, 5919, 6976, 7607, 9152;
title 45 sections 726, 904, 915, 1105; title 47 section 402; title 49
sections 20104, 32904; title 50 App. section 2412.