SUBCHAPTER II - ADMINISTRATIVE PROCEDURE

Transcription

1 SUBCHAPTER II - ADMINISTRATIVE PROCEDURE 551. Definitins. Fr the purpse f this subchapter - (1) ''agency'' means each authrity f the Gvernment f the United States, whether r nt it is within r subject t review by anther agency, but des nt include - (A) the Cngress; (B) the curts f the United States; (C) the gvernments f the territries r pssessins f the United States; (D) the gvernment f the District f Clumbia; r except as t the requirements f sectin 552 f this title (E) agencies cmpsed f representatives f the parties r f representatives f rganizatins f the parties t the disputes determined by them; (F) curts martial and military cmmissins; (G) military authrity exercised in the field in time f war r in ccupied territry; r (H) functins cnferred by sectins 1738, 1739, 1743, and 1744 f title 12; chapter 2 f title 41; subchapter II f chapter 471 f title 49; r sectins 1884, , and frmer sectin 1641(b)(2), f title 50, appendix; (2) ''persn'' includes an individual, partnership, crpratin, assciatin, r public r private rganizatin ther than an agency; (3) ''party'' includes a persn r agency named r admitted as a party, r prperly seeking and entitled as f right t be admitted as a party, in an agency prceeding, and a persn r agency admitted by an agency as a party fr limited purpses; (4) ''rule'' means the whle r a part f an agency statement f general r particular applicability and future effect designed t implement, interpret, r prescribe law r plicy r describing the rganizatin, prcedure, r practice requirements f an agency and includes the apprval r prescriptin fr the future f rates, wages, crprate r financial structures r rerganizatins theref, prices, facilities, appliances, services r allwances therefr r f valuatins, csts, r accunting, r practices bearing n any f the freging; (5) ''rule making'' means agency prcess fr frmulating, amending, r repealing a rule; (6) ''rder'' means the whle r a part f a final dispsitin, whether affirmative, negative, injunctive, r declaratry in frm, f an agency in a matter ther than rule making but including licensing; (7) ''adjudicatin'' means agency prcess fr the frmulatin f an rder; (8) ''license'' includes the whle r a part f an agency permit, certificate, apprval, registratin, charter, membership, statutry exemptin r ther frm f permissin; (9) ''licensing'' includes agency prcess respecting the grant, renewal, denial, revcatin, suspensin, annulment, withdrawal, limitatin, amendment, mdificatin, r cnditining f a license; (10) ''sanctin'' includes the whle r a part f an agency - (A) prhibitin, requirement, limitatin, r ther cnditin affecting the freedm f a persn; (B) withhlding f relief; (C) impsitin f penalty r fine; (D) destructin, taking, seizure, r withhlding f prperty; (E) assessment f damages, reimbursement, restitutin, cmpensatin, csts, charges, r fees; (F) requirement, revcatin, r suspensin f a license; r (G) taking ther cmpulsry r restrictive actin; (11) ''relief'' includes the whle r a part f an agency - (A) grant f mney, assistance, license, authrity, exemptin, exceptin, privilege, r remedy; (B) recgnitin f a claim, right, immunity, privilege, exemptin, r exceptin; r (C) taking f ther actin n the applicatin r petitin f, and beneficial t, a persn; (12) ''agency prceeding'' means an agency prcess as defined by paragraphs (5), (7), and (9) f this sectin; (13) ''agency actin'' includes the whle r a part f an agency rule, rder, license, sanctin, relief, r the equivalent r denial theref, r failure t act; and (14) ''ex parte cmmunicatin'' means an ral r written cmmunicatin nt n the public recrd with respect t which reasnable prir ntice t all parties is nt given, but it shall nt include requests fr status reprts n any matter r prceeding cvered by this subchapter Public infrmatin; agency rules, pinins, rders, recrds, and prceedings. (a) Each agency shall make available t the public infrmatin as fllws: (1) Each agency shall separately state and currently publish in the Federal Register fr the guidance f the public - (A) descriptins f its central and field rganizatin and the established places at which, the emplyees (and in the case f a unifrmed service, the members) frm whm, and the methds whereby, the public may btain infrmatin, make submittals r requests, r btain decisins; (B) statements f the general curse and methd by which its functins are channeled and determined, including the nature and requirements f all frmal and infrmal prcedures available;

2 2 (C) rules f prcedure, descriptins f frms available r the places at which frms may be btained, and instructins as t the scpe and cntents f all papers, reprts, r examinatins; (D) substantive rules f general applicability adpted as authrized by law, and statements f general plicy r interpretatins f general applicability frmulated and adpted by the agency; and (E) each amendment, revisin, r repeal f the freging. Except t the extent that a persn has actual and timely ntice f the terms theref, a persn may nt in any manner be required t resrt t, r be adversely affected by, a matter required t be published in the Federal Register and nt s published. Fr the purpse f this paragraph, matter reasnably available t the class f persns affected thereby is deemed published in the Federal Register when incrprated by reference therein with the apprval f the Directr f the Federal Register. (2) Each agency, in accrdance with published rules, shall make available fr public inspectin and cpying - (A) final pinins, including cncurring and dissenting pinins, as well as rders, made in the adjudicatin f cases; (B) thse statements f plicy and interpretatins which have been adpted by the agency and are nt published in the Federal Register; and (C) administrative staff manuals and instructins t staff that affect a member f the public; unless the materials are prmptly published and cpies ffered fr sale. T the extent required t prevent a clearly unwarranted invasin f persnal privacy, an agency may delete identifying details when it makes available r publishes an pinin, statement f plicy, interpretatin, r staff manual r instructin. Hwever, in each case the justificatin fr the deletin shall be explained fully in writing. Each agency shall als maintain and make available fr public inspectin and cpying current indexes prviding identifying infrmatin fr the public as t any matter issued, adpted, r prmulgated after July 4, 1967, and required by this paragraph t be made available r published. Each agency shall prmptly publish, quarterly r mre frequently, and distribute (by sale r therwise) cpies f each index r supplements theret unless it determines by rder published in the Federal Register that the publicatin wuld be unnecessary and impracticable, in which case the agency shall nnetheless prvide cpies f such index n request at a cst nt t exceed the direct cst f duplicatin. A final rder, pinin, statement f plicy, interpretatin, r staff manual r instructin that affects a member f the public may be relied n, used, r cited as precedent by an agency against a party ther than an agency nly if - (i) it has been indexed and either made available r published as prvided by this paragraph; r (ii) the party has actual and timely ntice f the terms theref Rule making. (a) This sectin applies, accrding t the prvisins theref, except t the extent that there is invlved - (1) a military r freign affairs functin f the United States; r (2) a matter relating t agency management r persnnel r t public prperty, lans, grants, benefits, r cntracts. (b) General ntice f prpsed rule making shall be published in the Federal Register, unless persns subject theret are named and either persnally served r therwise have actual ntice theref in accrdance with law. The ntice shall include - (1) a statement f the time, place, and nature f public rule making prceedings; (2) reference t the legal authrity under which the rule is prpsed; and (3) either the terms r substance f the prpsed rule r a descriptin f the subjects and issues invlved. Except when ntice r hearing is required by statute, this subsectin des nt apply - (A) t interpretative rules, general statements f plicy, r rules f agency rganizatin, prcedure, r practice; r (B) when the agency fr gd cause finds (and incrprates the finding and a brief statement f reasns therefr in the rules issued) that ntice and public prcedure theren are impracticable, unnecessary, r cntrary t the public interest. (c) After ntice required by this sectin, the agency shall give interested persns an pprtunity t participate in the rule making thrugh submissin f written data, views, r arguments with r withut pprtunity fr ral presentatin. After cnsideratin f the relevant matter presented, the agency shall incrprate in the rules adpted a cncise general statement f their basis and purpse. When rules are required by statute t be made n the recrd after pprtunity fr an agency hearing, sectins 556 and 557 f this title apply instead f this subsectin. (d) The required publicatin r service f a substantive rule shall be made nt less than 30 days befre its effective date, except - (1) a substantive rule which grants r recgnizes an exemptin r relieves a restrictin; (2) interpretative rules and statements f plicy; r (3) as therwise prvided by the agency fr gd cause fund and published with the rule. (e) Each agency shall give an interested persn the right t petitin fr the issuance, amendment, r repeal f a rule.

3 Adjudicatins. (a) This sectin applies, accrding t the prvisins theref, in every case f adjudicatin required by statute t be determined n the recrd after pprtunity fr an agency hearing, except t the extent that there is invlved - (1) a matter subject t a subsequent trial f the law and the facts de nv in a curt; (2) the selectin r tenure f an emplyee, except a (FOOTNOTE 1) administrative law judge appinted under sectin 3105 f this title; (FOOTNOTE 1) S in riginal. (3) prceedings in which decisins rest slely n inspectins, tests, r electins; (4) the cnduct f military r freign affairs functins; (5) cases in which an agency is acting as an agent fr a curt; r (6) the certificatin f wrker representatives. (b) Persns entitled t ntice f an agency hearing shall be timely infrmed f - (1) the time, place, and nature f the hearing; (2) the legal authrity and jurisdictin under which the hearing is t be held; and (3) the matters f fact and law asserted. When private persns are the mving parties, ther parties t the prceeding shall give prmpt ntice f issues cntrverted in fact r law; and in ther instances agencies may by rule require respnsive pleading. In fixing the time and place fr hearings, due regard shall be had fr the cnvenience and necessity f the parties r their representatives. (c) The agency shall give all interested parties pprtunity fr - (1) the submissin and cnsideratin f facts, arguments, ffers f settlement, r prpsals f adjustment when time, the nature f the prceeding, and the public interest permit; and (2) t the extent that the parties are unable s t determine a cntrversy by cnsent, hearing and decisin n ntice and in accrdance with sectins 556 and 557 f this title. (d) The emplyee wh presides at the receptin f evidence pursuant t sectin 556 f this title shall make the recmmended decisin r initial decisin required by sectin 557 f this title, unless he becmes unavailable t the agency. Except t the extent required fr the dispsitin f ex parte matters as authrized by law, such an emplyee may nt - (1) cnsult a persn r party n a fact in issue, unless n ntice and pprtunity fr all parties t participate; r (2) be respnsible t r subject t the supervisin r directin f an emplyee r agent engaged in the perfrmance f investigative r prsecuting functins fr an agency. An emplyee r agent engaged in the perfrmance f investigative r prsecuting functins fr an agency in a case may nt, in that r a factually related case, participate r advise in the decisin, recmmended decisin, r agency review pursuant t sectin 557 f this title, except as witness r cunsel in public prceedings. This subsectin des nt apply - (A) in determining applicatins fr initial licenses; (B) t prceedings invlving the validity r applicatin f rates, facilities, r practices f public utilities r carriers; r (C) t the agency r a member r members f the bdy cmprising the agency. (e) The agency, with like effect as in the case f ther rders, and in its sund discretin, may issue a declaratry rder t terminate a cntrversy r remve uncertainty Ancillary matters. (a) This sectin applies, accrding t the prvisins theref, except as therwise prvided by this subchapter. (b) A persn cmpelled t appear in persn befre an agency r representative theref is entitled t be accmpanied, represented, and advised by cunsel r, if permitted by the agency, by ther qualified representative. A party is entitled t appear in persn r by r with cunsel r ther duly qualified representative in an agency prceeding. S far as the rderly cnduct f public business permits, an interested persn may appear befre an agency r its respnsible emplyees fr the presentatin, adjustment, r determinatin f an issue, request, r cntrversy in a prceeding, whether interlcutry, summary, r therwise, r in cnnectin with an agency functin. With due regard fr the cnvenience and necessity f the parties r their representatives and within a reasnable time, each agency shall prceed t cnclude a matter presented t it. This subsectin des nt grant r deny a persn wh is nt a lawyer the right t appear fr r represent thers befre an agency r in an agency prceeding. (c) Prcess, requirement f a reprt, inspectin, r ther investigative act r demand may nt be issued, made, r enfrced except as authrized by law. A persn cmpelled t submit data r evidence is entitled t retain r, n payment f lawfully prescribed csts, prcure a cpy r transcript theref, except that in a nnpublic investigatry prceeding the witness may fr gd cause be limited t inspectin f the fficial transcript f his testimny. (d) Agency subpenas authrized by law shall be issued t a party n request and, when required by rules f prcedure, n a statement r shwing f general relevance and reasnable scpe f the evidence sught. On cntest, the curt shall sustain the subpena r similar prcess r demand t the extent that it is fund t be in accrdance with law. In a prceeding fr enfrcement, the curt shall issue an rder requiring the appearance f the witness r the prductin f the evidence r data within a reasnable time under penalty f punishment fr cntempt in case f cntumacius failure t cmply.

4 4 (e) Prmpt ntice shall be given f the denial in whle r in part f a written applicatin, petitin, r ther request f an interested persn made in cnnectin with any agency prceeding. Except in affirming a prir denial r when the denial is self-explanatry, the ntice shall be accmpanied by a brief statement f the grunds fr denial Hearings; presiding emplyees; pwers and duties; burden f prf; evidence; recrd as basis f decisin. (a) This sectin applies, accrding t the prvisins theref, t hearings required by sectin 553 r 554 f this title t be cnducted in accrdance with this sectin. (b) There shall preside at the taking f evidence - (1) the agency; (2) ne r mre members f the bdy which cmprises the agency; r (3) ne r mre administrative law judges appinted under sectin 3105 f this title. This subchapter des nt supersede the cnduct f specified classes f prceedings, in whle r in part, by r befre bards r ther emplyees specially prvided fr by r designated under statute. The functins f presiding emplyees and f emplyees participating in decisins in accrdance with sectin 557 f this title shall be cnducted in an impartial manner. A presiding r participating emplyee may at any time disqualify himself. On the filing in gd faith f a timely and sufficient affidavit f persnal bias r ther disqualificatin f a presiding r participating emplyee, the agency shall determine the matter as a part f the recrd and decisin in the case. (c) Subject t published rules f the agency and within its pwers, emplyees presiding at hearings may - (1) administer aths and affirmatins; (2) issue subpenas authrized by law; (3) rule n ffers f prf and receive relevant evidence; (4) take depsitins r have depsitins taken when the ends f justice wuld be served; (5) regulate the curse f the hearing; (6) hld cnferences fr the settlement r simplificatin f the issues by cnsent f the parties r by the use f alternative means f dispute reslutin as prvided in subchapter IV f this chapter; (7) infrm the parties as t the availability f ne r mre alternative means f dispute reslutin, and encurage use f such methds; (8) require the attendance at any cnference held pursuant t paragraph (6) f at least ne representative f each party wh has authrity t negtiate cncerning reslutin f issues in cntrversy; (9) dispse f prcedural requests r similar matters; (10) make r recmmend decisins in accrdance with sectin 557 f this title; and (11) take ther actin authrized by agency rule cnsistent with this subchapter. (d) Except as therwise prvided by statute, the prpnent f a rule r rder has the burden f prf. Any ral r dcumentary evidence may be received, but the agency as a matter f plicy shall prvide fr the exclusin f irrelevant, immaterial, r unduly repetitius evidence. A sanctin may nt be impsed r rule r rder issued except n cnsideratin f the whle recrd r thse parts theref cited by a party and supprted by and in accrdance with the reliable, prbative, and substantial evidence. The agency may, t the extent cnsistent with the interests f justice and the plicy f the underlying statutes administered by the agency, cnsider a vilatin f sectin 557(d) f this title sufficient grunds fr a decisin adverse t a party wh has knwingly cmmitted such vilatin r knwingly caused such vilatin t ccur. A party is entitled t present his case r defense by ral r dcumentary evidence, t submit rebuttal evidence, and t cnduct such crss-examinatin as may be required fr a full and true disclsure f the facts. In rule making r determining claims fr mney r benefits r applicatins fr initial licenses an agency may, when a party will nt be prejudiced thereby, adpt prcedures fr the submissin f all r part f the evidence in written frm. (e) The transcript f testimny and exhibits, tgether with all papers and requests filed in the prceeding, cnstitutes the exclusive recrd fr decisin in accrdance with sectin 557 f this title and, n payment f lawfully prescribed csts, shall be made available t the parties. When an agency decisin rests n fficial ntice f a material fact nt appearing in the evidence in the recrd, a party is entitled, n timely request, t an pprtunity t shw the cntrary Initial decisins; cnclusiveness; review by agency; submissins by parties; cntents f decisins; recrd. (a) This sectin applies, accrding t the prvisins theref, when a hearing is required t be cnducted in accrdance with sectin 556 f this title. (b) When the agency did nt preside at the receptin f the evidence, the presiding emplyee r, in cases nt subject t sectin 554(d) f this title, an emplyee qualified t preside at hearings pursuant t sectin 556 f this title, shall initially decide the case unless the agency requires, either in specific cases r by general rule, the entire recrd t be certified t it fr decisin. When the presiding emplyee makes an initial decisin, that decisin then becmes the decisin f the agency withut further prceedings unless there is an appeal t, r review n mtin f, the agency within time prvided by rule. On appeal frm r review f the initial decisin, the agency has all the pwers which it wuld have in making the initial decisin except as it may limit the issues n ntice r by rule. When the agency makes the decisin withut having presided at the

5 5 receptin f the evidence, the presiding emplyee r an emplyee qualified t preside at hearings pursuant t sectin 556 f this title shall first recmmend a decisin, except that in rule making r determining applicatins fr initial licenses - (1) instead theref the agency may issue a tentative decisin r ne f its respnsible emplyees may recmmend a decisin; r (2) this prcedure may be mitted in a case in which the agency finds n the recrd that due and timely executin f its functins imperatively and unavidably s requires. (c) Befre a recmmended, initial, r tentative decisin, r a decisin n agency review f the decisin f subrdinate emplyees, the parties are entitled t a reasnable pprtunity t submit fr the cnsideratin f the emplyees participating in the decisins - (1) prpsed findings and cnclusins; r (2) exceptins t the decisins r recmmended decisins f subrdinate emplyees r t tentative agency decisins; and (3) supprting reasns fr the exceptins r prpsed findings r cnclusins. The recrd shall shw the ruling n each finding, cnclusin, r exceptin presented. All decisins, including initial, recmmended, and tentative decisins, are a part f the recrd and shall include a statement f - (A) findings and cnclusins, and the reasns r basis therefr, n all the material issues f fact, law, r discretin presented n the recrd; and (B) the apprpriate rule, rder, sanctin, relief, r denial theref. (d) (1) In any agency prceeding which is subject t subsectin (a) f this sectin, except t the extent required fr the dispsitin f ex parte matters as authrized by law - (A) n interested persn utside the agency shall make r knwingly cause t be made t any member f the bdy cmprising the agency, administrative law judge, r ther emplyee wh is r may reasnably be expected t be invlved in the decisinal prcess f the prceeding, an ex parte cmmunicatin relevant t the merits f the prceeding; (B) n member f the bdy cmprising the agency, administrative law judge, r ther emplyee wh is r may reasnably be expected t be invlved in the decisinal prcess f the prceeding, shall make r knwingly cause t be made t any interested persn utside the agency an ex parte cmmunicatin relevant t the merits f the prceeding; (C) a member f the bdy cmprising the agency, administrative law judge, r ther emplyee wh is r may reasnably be expected t be invlved in the decisinal prcess f such prceeding wh receives, r wh makes r knwingly causes t be made, a cmmunicatin prhibited by this subsectin shall place n the public recrd f the prceeding: (i) all such written cmmunicatins; (ii) memranda stating the substance f all such ral cmmunicatins; and (iii) all written respnses, and memranda stating the substance f all ral respnses, t the materials described in clauses (i) and (ii) f this subparagraph; (D) upn receipt f a cmmunicatin knwingly made r knwingly caused t be made by a party in vilatin f this subsectin, the agency, administrative law judge, r ther emplyee presiding at the hearing may, t the extent cnsistent with the interests f justice and the plicy f the underlying statutes, require the party t shw cause why his claim r interest in the prceeding shuld nt be dismissed, denied, disregarded, r therwise adversely affected n accunt f such vilatin; and (E) the prhibitins f this subsectin shall apply beginning at such time as the agency may designate, but in n case shall they begin t apply later than the time at which a prceeding is nticed fr hearing unless the persn respnsible fr the cmmunicatin has knwledge that it will be nticed, in which case the prhibitins shall apply beginning at the time f his acquisitin f such knwledge. (2) This subsectin des nt cnstitute authrity t withhld infrmatin frm Cngress Impsitin f sanctins; determinatin f applicatins fr licenses; suspensin, revcatin, and expiratin f licenses. (a) This sectin applies, accrding t the prvisins theref, t the exercise f a pwer r authrity. (b) A sanctin may nt be impsed r a substantive rule r rder issued except within jurisdictin delegated t the agency and as authrized by law. (c) When applicatin is made fr a license required by law, the agency, with due regard fr the rights and privileges f all the interested parties r adversely affected persns and within a reasnable time, shall set and cmplete prceedings required t be cnducted in accrdance with sectins 556 and 557 f this title r ther prceedings required by law and shall make its decisin. Except in cases f willfulness r thse in which public health, interest, r safety requires therwise, the withdrawal, suspensin, revcatin, r annulment f a license is lawful nly if, befre the institutin f agency prceedings therefr, the licensee has been given - (1) ntice by the agency in writing f the facts r cnduct which may warrant the actin; and (2) pprtunity t demnstrate r achieve cmpliance with all lawful requirements.

6 6 When the licensee has made timely and sufficient applicatin fr a renewal r a new license in accrdance with agency rules, a license with reference t an activity f a cntinuing nature des nt expire until the applicatin has been finally determined by the agency Effect n ther laws; effect f subsequent statute. This subchapter, chapter 7, and sectins 1305, 3105, 3344, 4301(2)(E), 5372, and 7521 f this title, and the prvisins f sectin 5335(a)(B) f this title that relate t administrative law judges, d nt limit r repeal additinal requirements impsed by statute r therwise recgnized by law. Except as therwise required by law, requirements r privileges relating t evidence r prcedure apply equally t agencies and persns. Each agency is granted the authrity necessary t cmply with the requirements f this subchapter thrugh the issuance f rules r therwise. Subsequent statute may nt be held t supersede r mdify this subchapter, chapter 7, sectins 1305, 3105, 3344, 4301(2)(E), 5372, r 7521 f this title, r the prvisins f sectin 5335(a)(B) f this title that relate t administrative law judges, except t the extent that it des s expressly.

7 Applicatin; definitins (a) This chapter applies, accrding t the prvisins theref, except t the extent that - (1) statutes preclude judicial review; r (2) agency actin is cmmitted t agency discretin by law. (b) Fr the purpse f this chapter - (1) 'agency' means each authrity f the Gvernment f the United States, whether r nt it is within r subject t review by anther agency, but des nt include - (A) the Cngress; (B) the curts f the United States; (C) the gvernments f the territries r pssessins f the United States; (D) the gvernment f the District f Clumbia; (E) agencies cmpsed f representatives f the parties r f representatives f rganizatins f the parties t the disputes determined by them; (F) curts martial and military cmmissins; (G) military authrity exercised in the field in time f war r in ccupied territry; r (H) functins cnferred by sectins 1738, 1739, 1743, and 1744 f title 12; chapter 2> f title 41; r sectins 1622, 1884, , and frmer sectin 1641(b)(2), f title 50, appendix; and (2) 'persn', 'rule', 'rder', 'license', 'sanctin', 'relief', and 'agency actin' have the meanings given them by sectin 551 f this title Right f review A persn suffering legal wrng because f agency actin, r adversely affected r aggrieved by agency actin within the meaning f a relevant statute, is entitled t judicial review theref. An actin in a curt f the United States seeking relief ther than mney damages and stating a claim that an agency r an fficer r emplyee theref acted r failed t act in an fficial capacity r under clr f legal authrity shall nt be dismissed nr relief therein be denied n the grund that it is against the United States r that the United States is an indispensable party. The United States may be named as a defendant in any such actin, and a judgment r decree may be entered against the United States: Prvided, That any mandatry r injunctive decree shall specify the Federal fficer r fficers (by name r by title), and their successrs in ffice, persnally respnsible fr cmpliance. Nthing herein (1) affects ther limitatins n judicial review r the pwer r duty f the curt t dismiss any actin r deny relief n any ther apprpriate legal r equitable grund; r (2) cnfers authrity t grant relief if any ther statute that grants cnsent t suit expressly r impliedly frbids the relief which is sught Frm and venue f prceeding The frm f prceeding fr judicial review is the special statutry review prceeding relevant t the subject matter in a curt specified by statute r, in the absence r inadequacy theref, any applicable frm f legal actin, including actins fr declaratry judgments r writs f prhibitry r mandatry injunctin r habeas crpus, in a curt f cmpetent jurisdictin. If n special statutry review prceeding is applicable, the actin fr judicial review may be brught against the United States, the agency by its fficial title, r the apprpriate fficer. Except t the extent that prir, adequate, and exclusive pprtunity fr judicial review is prvided by law, agency actin is subject t judicial review in civil r criminal prceedings fr judicial enfrcement Actins reviewable Agency actin made reviewable by statute and final agency actin fr which there is n ther adequate remedy in a curt are subject t judicial review. A preliminary, prcedural, r intermediate agency actin r ruling nt directly reviewable is subject t review n the review f the final agency actin. Except as therwise expressly required by statute, agency actin therwise final is final fr the purpses f this sectin whether r nt there has been presented r determined an applicatin fr a declaratry rder, fr any frm f recnsideratins, r, unless the agency therwise requires by rule and prvides that the actin meanwhile is inperative, fr an appeal t superir agency authrity 705. Relief pending review When an agency finds that justice s requires, it may pstpne the effective date f actin taken by it, pending judicial review. On such cnditins as may be required and t the extent necessary t prevent irreparable injury, the reviewing curt, including the curt t which a case may be taken n appeal frm r n applicatin fr certirari r ther writ t a reviewing curt, may issue all necessary and apprpriate prcess t pstpne the effective date f an agency actin r t preserve status r rights pending cnclusin f the review prceedings.

8 Scpe f review T the extent necessary t decisin and when presented, the reviewing curt shall decide all relevant questins f law, interpret cnstitutinal and statutry prvisins, and determine the meaning r applicability f the terms f an agency actin. The reviewing curt shall - (1) cmpel agency actin unlawfully withheld r unreasnably delayed; and (2) hld unlawful and set aside agency actin, findings, and cnclusins fund t be - (A) arbitrary, capricius, an abuse f discretin, r therwise nt in accrdance with law; (B) cntrary t cnstitutinal right, pwer, privilege, r immunity; (C) in excess f statutry jurisdictin, authrity, r limitatins, r shrt f statutry right; (D) withut bservance f prcedure required by law; (E) unsupprted by substantial evidence in a case subject t sectins 556 and 557 f this title r therwise reviewed n the recrd f an agency hearing prvided by statute; r (F) unwarranted by the facts t the extent that the facts are subject t trial de nv by the reviewing curt. In making the freging determinatins, the curt shall review the whle recrd r thse parts f it cited by a party, and due accunt shall be taken f the rule f prejudicial errr. Other Statutry Prvisins 28 USC Original jurisdictin (a) The Supreme Curt shall have riginal and exclusive jurisdictin f all cntrversies between tw r mre States. (b) The Supreme Curt shall have riginal but nt exclusive jurisdictin f: (1) All actins r prceedings t which ambassadrs, ther public ministers, cnsuls, r vice cnsuls f freign states are parties; (2) All cntrversies between the United States and a State; (3) All actins r prceedings by a State against the citizens f anther State r against aliens. 28 U.S. Cde Jurisdictin f curt f appeals The curt f appeals (ther than the United States Curt f Appeals fr the Federal Circuit) has exclusive jurisdictin t enjin, set aside, suspend (in whle r in part), r t determine the validity f- (1) all final rders f the Federal Cmmunicatin Cmmissin made reviewable by sectin 402 (a) f title 47; (2) all final rders f the Secretary f Agriculture made under chapters 9 and 20A f title 7, except rders issued under sectins 210 (e), 217a, and 499g (a) f title 7; (3) all rules, regulatins, r final rders f- (A) the Secretary f Transprtatin issued pursuant t sectin 50501, 50502, , r f title 46 r pursuant t part B r C f subtitle IV, subchapter III f chapter 311, chapter 313, r chapter 315f title 49; and (B) the Federal Maritime Cmmissin issued pursuant t sectin 305, 41304, 41308, r r chapter 421sectin 305, 41304, 41308, r r chapter 421 r 441 f title 46; 28 U.S.C.A Time fr cmmencing actin against United States (a) Except as prvided by chapter 71 f title 41, every civil actin cmmenced against the United States shall be barred unless the cmplaint is filed within six years after the right f actin first accrues. The actin f any persn under legal disability r beynd the seas at the time the claim accrues may be cmmenced within three years after the disability ceases. (b) A trt claim against the United States shall be frever barred unless it is presented in writing t the apprpriate Federal agency within tw years after such claim accrues r unless actin is begun within six mnths after the date f mailing, by certified r registered mail, f ntice f final denial f the claim by the agency t which it was presented. Art II, sec. 2, cl 2 - the Appintments Clause "[The President] shall nminate, and by and with the Advice and Cnsent f the Senate, shall appint... all ther [principal] Officers f the United States, whse Appintments are nt herein therwise prvided fr, and which shall be established by Law: but the Cngress may by Law vest the Appintment f such inferir Officers, as they think prper, in the President alne, in the Curts f Law, r in the Heads f Departments."