Ch6. Administrative Remedies — Administrative Appeals and Judicial Review

The Administrative Remedies Framework

Administrative Remedies: mechanisms for correcting or obtaining relief from unlawful or improper agency action.

Pre-Deprivation Relief: Administrative Procedure
  (hearing, written comment — before the action)
Post-Deprivation Relief:
  ├── Administrative Appeal (within the agency)
  └── Judicial Review (in court)
  └── Compensation
      ├── Tort Damages (for unlawful action)
      └── Just Compensation (for lawful taking)

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Administrative Appeals

Administrative Appeal: a mechanism within the executive branch for reviewing the legality and propriety of agency actions.

Types

Three Main Types of Administrative Appeal:
① Rescission appeal: challenge an unlawful or
  improper order — seek its cancellation or
  modification.
② Nullity confirmation: seek a declaration that the
  action is void and without legal effect.
③ Obligation-to-act appeal: challenge an improper
  refusal or prolonged inaction — compel the agency
  to act.

Filing Deadlines

Rescission appeal: typically 30–60 days from the
  date of the final agency order (check applicable
  statute; e.g., MSPB: 30 days; EEOC: 30 days;
  contractor boards: 90 days; compare Korean rule:
  90 days from notice / 180 days from action).

Nullity confirmation: no time limit.
Obligation-to-act appeal: no fixed limit for prolonged
  inaction cases.

Decision (Determination)

Determination: the final decision on an administrative appeal.

Types of Determination:
① Grant: appeal upheld (order rescinded / modified /
   duty to act confirmed).
② Denial: appeal without merit.
③ Dismissal: appeal fails threshold requirements.

Binding Effect: the agency whose action was reviewed
  is bound by the determination; it may not deny the
  same request for the same reasons.

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Judicial Review

Judicial Review: court review of agency action for legality under the APA or applicable statute.

Types

APA Judicial Review Categories (5 U.S.C. § 706):
① Appellate review (§ 706(2)): challenge a final
   agency order for being arbitrary, capricious,
   contrary to law, or unconstitutional.
② Mandamus / obligation-to-act: compel agency action
   unreasonably withheld or delayed (§ 706(1)).
③ Party / rights action (declaratory judgment,
   injunctive relief): legal rights under public law.
④ Citizen / class actions (e.g., environmental suits).
⑤ Inter-agency disputes.

Appellate Review (§ 706(2))

Requirements for APA Judicial Review:
① Final agency action (Bennett v. Spear; all
   administrative remedies exhausted).
② Standing: injury in fact, traceable to the agency
   action, redressable by the court.
③ Proper defendant: the agency that acted.
④ Timely filing: typically 60 days from final order
   (check governing statute).
⑤ Exhaustion of administrative remedies.

Standard of Review:
- Arbitrary and capricious / abuse of discretion
  (§ 706(2)(A)) — most common standard.
- Contrary to constitutional right (§ 706(2)(B)).
- Contrary to law / statute (§ 706(2)(C)).
- Without observance of procedure required by law
  (§ 706(2)(D)).

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Stay of Enforcement

Stay: suspension of an agency order’s enforcement during judicial or administrative review.

Requirements for a Stay (traditional equitable test):
① Likelihood of success on the merits.
② Irreparable harm absent a stay.
③ Balance of harms favors the stay.
④ Stay is in the public interest.

Effect: enforcement suspended from grant of stay
  until final judgment.
Automatic expiration upon final judgment.

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Administrative Appeal vs. Judicial Review Comparison

Category	Administrative Appeal	Judicial Review
Decision-maker	Agency / Tribunal	Court
Standard	Unlawful + Improper	Unlawful / Arbitrary
Filing deadline	30–60 days	APA default 60 days
Cost	Low / no fee	Court filing fees
Binding effect	Yes	Yes

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Key Concept Cards

Three Types of Administrative Appeal ★★★★★ : Rescission — Nullity confirmation — Obligation-to-act. The obligation-to-act type compels an agency to perform a duty it has refused or unreasonably delayed. Memory tip: Rescind – Void – Compel-to-act.

Judicial Review Filing Deadline ★★★★★ : APA default 60 days from final agency order. Many agency-specific statutes differ — always check the governing statute. Memory tip: APA = 60 days; verify each statute.

Stay Requirements ★★★★☆ : (1) Likely to succeed on the merits + (2) Irreparable harm + (3) Balance of harms + (4) Public interest. All four factors are weighed. Memory tip: Success + Harm + Balance + Public interest.

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Practice Quiz

Q. An operating license was revoked 100 days ago. Can the licensee still file an administrative appeal?

It depends on the applicable statute. Under most federal agency schemes, the deadline is 30–60 days from receipt of the final order. Filing 100 days after the revocation would generally be untimely. However, if the deadline is tied to the date of formal notice (not the date of the action), and notice was delayed, the deadline may run from the date notice was actually received. Always check the specific governing statute and its tolling provisions.

Q. Can an agency act to enforce an order while judicial review is pending? How can the challenging party prevent this?

Yes — filing for judicial review does not automatically stay the agency action. The challenging party must separately move for a stay of enforcement (or preliminary injunction). The party must demonstrate: (1) likelihood of success on the merits; (2) irreparable harm if enforcement proceeds; (3) that the balance of harms favors a stay; and (4) that a stay is in the public interest.