Toward Adequacy

50 Pages Posted: 4 Mar 2013 Last revised: 28 Feb 2015

Date Written: February 17, 2014


Each year, hundreds of people, companies, organizations, and associations sue the federal government for injuries they have suffered at the hands of federal agencies. Such suits are often brought under the judicial review provisions of the Administrative Procedure Act (“APA”), which Congress enacted expressly to allow broad access to courts in an age of increasing administrative agency action. By the terms of the APA itself, all final agency action for which there is no other adequate remedy in a court is reviewable under the APA.

But the very language meant to welcome such suits into court also acts as a bar: to be eligible for judicial review under the APA, agency actions must have “no other adequate remedy in a court” (NOARC). Despite the facial ambiguity of the NOARC requirement — “adequacy is in the eye of the beholder,” as one scholar recently wrote — NOARC is a provision that has long been ignored by academia, treatise writers, and the Supreme Court. The Justices have only explicitly addressed the meaning of NOARC in one case, Bowen v. Massachusetts, 487 U.S. 879 (1988), with a patchwork opinion marked by its meandering analysis and muddled reasoning. With only Bowen as a guide, confusion has abounded — in the Court’s own jurisprudence, in the lower courts, and in the active advocacy of practitioners.

Recent cases demonstrate that the question of NOARC is not an esoteric one. Rather, the rights of children in need of state-provided mental health care services, of women and Hispanic farmers to retain long-held family lands, and of U.S. citizens with Mexican-American surnames applying for U.S. passports have all depended on the meaning of the NOARC requirement. And yet, no consensus about NOARC exists. In light of the NOARC requirement’s wide impact and high stakes, our anemic NOARC jurisprudence must be replaced with robust dialogue about the meaning of NOARC and its implications for judicial review under the APA. This dialogue should be informed by a close and faithful reading of the NOARC provision itself.

Keywords: administrative procedure, Administrative Procedure Act, administrative law, judicial review

Suggested Citation

Brinton, Sarah L., Toward Adequacy (February 17, 2014). 68 N.Y.U. ANN. SURV. OF AM. L. 357 (2013), Available at SSRN: or

Sarah L. Brinton (Contact Author)

affiliation not provided to SSRN

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