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A More Sensible Approach to Vesting Jurisdiction for Judicial Review of Agency Decisions

Fred Weaver believed he had a case against the Federal Motor Carrier Safety Administration (FMCSA) based on the agency’s refusal to remove from its database a listing for a traffic citation issued to Mr. Weaver. In which court should he have filed his challenge? A trial court or an appeals court?

Judge with GavelThe Administrative Procedure Act (APA) creates a presumption that aggrieved individuals can challenge final agency action in court, but it says nothing about which court. To find the right court, Mr. Weaver’s attorneys needed to determine whether his situation was governed by the default rule of federal trial court jurisdiction over APA cases, or whether his case fell within one of more than 1,000 exclusive jurisdictional statutes spread throughout the U.S. Code that provide for direct appellate court review of specific agency actions.

Finding out if there is a relevant specific jurisdictional provision (or confirming the absence of one) is only half the battle; even seemingly straightforward provisions hide considerable ambiguity. Does a provision providing for direct appellate review of “orders” include authority for appellate review of a new regulation? What about a less formal agency action, as was at issue in Weaver’s case? The answer to these questions, it turns out, depends on the particular legislative language, the appellate circuit in which a complaining party resides, and perhaps even the particular judge or panel that happens to hear the claim.

Such jurisdictional ambiguities have given rise to numerous conflicting interpretations, circuit splits, dead-weight loss from jurisdictional litigation, heavier dockets due to the (quite prudent) practice of simultaneous protective filings in the alternative forum, and frequent Supreme Court intervention to unravel the mess. In Weaver’s case, his attorneys filed two cases: one in a trial (or district) court, and one in a circuit court. After litigating jurisdiction for years in both courts, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Weaver needed first to file in the district court.

Litigants without the foresight or resources to file multiple cases run the risk of losing out on meritorious claims if they sue in the wrong court—a problem exacerbated by dangerously short 60-day deadlines included in many specific jurisdictional provisions. The problem arises not only from ambiguous—and multiplying—jurisdictional statutes; it is also the product of Congress’s incoherent and inconsistent legislating.

When and why does Congress provide for one type of review or another? Few patterns emerge from the seemingly random assignment of initial agency review between circuit and district courts. Why does legislation direct decertified airline mechanics to proceed directly to circuit court, while decertified Navy instructors must first present their challenge to the district court? Far from clarifying matters, Congress continues to enthusiastically churn out jurisdictional decisions each year without any apparent framework, making the confusion only grow worse over time.

Can a coherent framework be developed? Under which circumstances, if any, is direct review by an appeals court preferable? We believe the following six factors have a bearing on this decision:

  • Legitimacy, or the idea that it might be “unseemly” for a single district judge to review the work of an expert agency;
  • Workload distribution, or the response to relative workloads, such that the court with a labor surplus at the time of legislation becomes the better candidate for original jurisdiction;
  • Procedural rules, or the relative utility of the Federal Rules of Civil and Appellate Procedure in administrative cases;
  • Authoritativeness, or the potential for binding resolution of a challenge;
  • Efficiency, or the ability to resolve a matter without superfluous waste of time and resources; and
  • Accuracy, or features of the decision-making process that tend to reduce the likelihood of error.

The last three of these factors strike us as providing the most persuasive arguments for particular jurisdictional choices.

On the question of authoritativeness, we identified an advantage in favor of the courts of appeals in cases challenging agency decisions of broad scope, as these courts have broader geographic coverage and strong rules of precedent. Law of the circuit allows the circuit court to resolve the legality of an agency’s rule a single time, regardless of the number of times it is challenged. Of course, we recognize that this advantage for circuit courts does not necessarily favor direct circuit review of a rule, only eventual circuit court review, which of course always remains an option as an appeal can be made after a matter has been decided by a trial court.

The efficiency factor is the strongest of the bunch in favor of initial review by circuit courts. If a type of case is likely to be appealed in any event—though this is probably the minority of cases—why waste court and litigant resources by first forcing the parties to make a stop at the local district court?

As much as efficiency should matter, in practice it is far from clear that Congress accurately assesses likelihood of appeal. Congress has placed jurisdiction over petitions to review immigration decisions in circuit courts, for example, despite the low chance of appeal had they been placed in the district court in the first place. Meanwhile, challenges to U.S. Department of Health and Human Services (HHS) regulations—strong candidates for appeal given the amount of money and controversial policy issues at stake—begin their judicial journey at the district court level.

A further qualification about efficiency may be even more important to note. Even if a case is likely to be appealed, that does not render the trip to district court valueless. This is where efficiency dovetails into accuracy. By forcing the parties to litigate first in front of a trial judge before an appeal, the appellate court ends up with more crystallized and selective arguments, an opinion by the district judge that highlights the important parts of the record, and an analysis by the district judge that may aid the appellate court’s ultimate decision.

Much of our analysis implicates empirical questions, but our bottom line is this: although the case for direct appellate court review may make sense in a small subset of cases, the current “scheme”—if it can even be called that—misses the mark. Muddled and inconsistent jurisdictional choices impose heavy costs on litigants, courts, and society at large. Going forward, we hope lawmakers draw upon the kind of analytical framework we have sketched here when determining the court in which to vest the power of reviewing specific administrative actions.


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