Non-statutory review, ultra vires review, and Leedom v. Kyne, the leading case on non-statutory review, all have one thing in common—when I come across them, my eyes glaze over, and I pretend it never happened, hoping they will all go away. It’s like an allergic reaction. I’ve avoided talking about them, writing about them, and covering them in my Administrative Law course like the plague. Leave it to Richard (“Chip”) Murphy, famous for his entertaining and informative annual reviews of administrative law developments for the American Bar Association, to produce an article that makes them accessible, worth covering, and, almost, enjoyable to read about. Murphy’s article, Ultra Vires Review of Federal Agency Action Made Simple(r), does just that.
Statutory review, as the term implies, is judicial review of agency action under the APA or another statute providing for judicial review. Non-statutory ultra vires review is conventionally understood to provide a narrow method for seeking to enjoin agency action taken beyond the agency’s statutory authority that may not meet the finality requirement applicable to actions by the particular agency. The availability of ultra vires review is based on the Supreme Court’s 1958 decision in Leedom v. Kyne, an NLRB case the Court characterized as “one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act.”1 Under current law, as the Fourth Circuit has explained, ultra vires review is “appropriate only where there is a ‘strong and clear demonstration that a clear, specific and mandatory [statutory provision] has been violated.’”2 In his characteristically colorful style, Professor Murphy explains that under this view, ultra vires claims “can override finality requirements, but only for the most spectacular statutory violations.” (P. 1206.)
The problem that Murphy confronts is the same one that has made me allergic to even thinking about ultra vires review before now: the doctrine governing the availability of ultra vires review is a mess, with some courts viewing it as a readily available alternative to APA review and others confining it to the rare case of extreme statutory violations. And then there’s the issue of whether the APA’s restrictions on the availability and timing of judicial review apply in ultra vires case, with courts all over the place on that one. What’s a scholar to do?
Based on a meticulous and engaging review of the origins and applications of ultra vires review in and since Leedom v. Kyne, Murphy concludes that much of modern doctrine is based on a misunderstanding of Leedom as authorizing review of non-final agency action whenever a colorable claim can be made that an agency’s actions are plainly legally unauthorized. He points out, correctly in my view, that the action in Leedom, Board certification of a bargaining unit, was “obviously ‘final’ in the sense of that term used by general administrative law” but was not a final, reviewable action under the special statutory review scheme that applies to orders of the NLRB. (P. 1234.) Rather than authorizing review of nonfinal agency action, Murphy views the proper scope of ultra vires review as an avenue for enjoining unlawful agency action that would be unreviewable under the particular agency’s statutory review mechanism. He rejects both the limit of non-statutory review to “egregiously severe error” and the idea that ultra vires review is available for non-final agency action in the administrative law sense.
Murphy proposes to simplify ultra vires review by “reintegrating” it with review under the APA so that it works “like APA review did back in 1946.” (P. 1206.) This would involve two changes to current doctrine. First, ultra vires review would be available only for agency action that meets the APA’s finality requirement. Second, ultra vires review would not be confined to cases of spectacular or extreme error except when “necessary to escape the force of implied preclusion that might otherwise block an ultra vires claim.” (P. 1241.)
Murphy recognizes that confining ultra vires review to final agency action might appear to shield some unlawful agency action from effective review. His answer, with nuance that cannot be captured in this format, is to focus on the Supreme Court’s recognition that APA finality should be applied pragmatically, allowing review of agency actions that have immediate consequences that might not be remediable if review were postponed. (Pp. 1235-36.) APA finality, like many legal doctrines, leaves courts sufficient wiggle room to resolve problematic cases without sacrificing the coherence that Murphy would restore to the law of ultra vires review.
Professor Murphy’s article is enlightening, readable, sensible, and useful to anyone interested in judicial review procedure. Thank you, Chip, for making ultra vires review hypo-allergenic.
- Leedom v. Kyne, 358 U.S. 184, 188 (1958).
- Long Term Care Partners, LLC v. U.S., 516 F.3d 225, 234 (4th Cir. 2008) (quoting Newport News Shipbuilding and Dry Dock Co. v. NLRB, 633 F.2d 1079, 1081 (4th Cir. 1980)).
