Not Another ‘Adequate Remedy’: The Constitution and Judicial Review Under the APA

Abstract

To err is human – and also administrative. Federal agency action gives rise to hundreds of suits each year, in which plaintiffs bring claims under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. Before federal agency action undergoes APA review, however, federal district courts must determine that “no other adequate remedy in a court” exists. 5 U.S.C. § 704. But courts looking only to these seven simple words might be lead astray. This Article demonstrates that, despite the plain language of § 704, a faithful reading of the APA’s statutory text reveals courts may not withhold APA review on the ground that constitutional review would provide “[an]other adequate remedy in a court.” Part I argues that Congress intended for a court to allow plaintiffs to bring APA and constitutional claims simultaneously, as evidenced by the text and structure of the APA. Part II argues that courts should interpret § 704 in light of the principle of constitutional avoidance. The “canon of constitutional avoidance” is shorthand for a series of distinct jurisprudential principles, one of which, the “order-of-battle” canon, has important implications for a court’s reading of § 704. This Article advances the novel argument that the policies underlying the order-of-battle canon have interpretive implications for judicial review provisions, such as Chapter 7 of the APA – namely, courts ought to interpret such provisions so as to avoid constitutional holdings when a statute may resolve the case. In light of congressional intent, as evidenced by the text and structure of the APA, and jurisprudential principles of constitutional avoidance, courts should not preclude plaintiffs from bringing APA and constitutional claims simultaneously – no matter how plain the § 704 language may be.