Statutory Time Limits on Judicial Review of Rules: Verkuil Revisited
38 Pages Posted: 20 May 2011 Last revised: 26 May 2011
Date Written: May 1, 2011
About two dozen regulatory statutes, including much environmental legislation, provide that judicial review of rules issued under them may be sought within a short period thereafter (such as sixty days). Some of these time limit provisions expressly forbid judicial review of such rules after the statutory period, even during proceedings to enforce the rule; others seem to endorse similar constraints by implication. Courts have struggled with questions as to how fully they should give effect to these limits. The issue is akin to the familiar “jurisdiction-stripping” debate in constitutional litigation, but it poses distinctive analytic challenges of its own. For one thing, the time limit statutes have a credible rationale - to promote early resolution of the legality of regulations that could be very expensive to implement. Moreover, the familiar presumption in favor of reviewability has uncertain application to the time limit provisions, because they circumscribe access to judicial review but do not forbid it categorically.
In the early 1980s, Paul Verkuil analyzed these statutes as a consultant for the Administrative Conference of the United States (ACUS). He and ACUS proposed functional principles that courts could use in applying the time limit statutes. Under these principles, for example, a court should decline jurisdiction over a belated challenge alleging that a rule was adopted through incorrect procedure; but it should be more receptive to challengers who allege, even belatedly, that a rule exceeds the agency’s statutory mandate. The present article surveys the subsequent case law and finds that courts have largely adhered to the Verkuil-ACUS prescriptions. However, their adherence has sometimes been oblique or poorly articulated. Moreover, courts have not been noticeably receptive to the Verkuil-ACUS proposal that issues “relating to...the application of the rule to a particular respondent or defendant” should, as such, remain open in an enforcement proceeding.
Overall, the pattern of decisions is a good example of what the author has previously called a “common law of preclusion.” Although not deeply theorized, it makes sense in practical terms and constitutes a credible compromise among strong societal values.
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