Also known as: statutorily precluded · statutory preclusions · preclusion by statute · statutory bar
Written by attorneys — see sources below.
A doctrine under which a statute bars judicial review of agency action by directing disputes into specified administrative channels instead of the courts. The inquiry turns on the text and structure of the particular statute at issue. Courts apply a presumption of reviewability that yields only when the statute clearly precludes review.
Signal Current sought federal registration of a satirical brand name that a statute barred as disparaging. The examiner denied the application under the statutory prohibition. Signal Current challenged the denial in federal court, arguing that the statutory bar itself could not be enforced because it targeted private speech on the basis of viewpoint.
Thunder Basin Coal refused to post certain designations required by the Mine Act and sought immediate judicial review of the Secretary's interpretation. The statute provided a detailed administrative review process before the Federal Mine Safety and Health Review Commission. The court held that the statutory scheme precluded direct district court review until the administrative process concluded.
Abbott Laboratories faced new FDA labeling regulations that required immediate changes to packaging and promotional materials. The company sued in district court to challenge the regulations before any enforcement action occurred. The statute provided no explicit pre-enforcement review mechanism, so the court examined whether the statutory scheme impliedly precluded such suits.
In 1962 Congress amended the Federal Food, Drug, and Cosmetic Act to require manufacturers of prescription drugs to print the established name of the drug prominently and in type at least half as large as that used for any proprietary name on labels and other printed material. The underlying purpose was to inform doctors and patients that many drugs sold under trade names are identical to those sold under established names at lower prices. The Commissioner of Food and Drugs published proposed regulations in the Federal Register after receiving delegated authority, invited and considered comments from interested parties, and promulgated a regulation requiring that the established name accompany each appearance of the proprietary name on labels and in advertisements for prescription drugs, with a similar rule for advertisements. Thirty-seven individual drug manufacturers and the Pharmaceutical Manufacturers Association, whose members manufacture more than ninety percent of the nation's prescription drugs, brought suit in district court challenging the regulations on the ground that the Commissioner exceeded his statutory authority by imposing an every-time requirement. The District Court granted declaratory and injunctive relief on cross-motions for summary judgment, but the Court of Appeals for the Third Circuit reversed without reaching the merits, holding that pre-enforcement review was unauthorized and that no actual case or controversy existed. The Supreme Court granted certiorari because of the general importance of the question and an apparent conflict with a decision of the Second Circuit. The regulations were promulgated after formal notice-and-comment procedures, were made effective upon publication in the Federal Register, and carried an agency expectation of immediate compliance. Petitioners alleged that compliance would require extensive and costly changes to all labels, advertisements, and promotional materials while noncompliance would expose them to serious criminal and civil penalties.
View caseA court examines the text, structure, and purpose of the particular statute. The presumption favors reviewability, but clear statutory language or a comprehensive administrative scheme can overcome that presumption.
Litigants must pursue the administrative remedies the statute provides before seeking judicial review. Premature court challenges are dismissed for lack of jurisdiction.
Supporting sources
The Constitution does not mandate review in every case. Statutory preclusion is generally upheld unless it raises serious constitutional questions such as suspension of habeas corpus.
Yes. When the bar targets private speech based on viewpoint, it is subject to strict scrutiny and may be held invalid even though it appears in a registration statute.
…discussed hereafter. Section 701 (e) provides a procedure for the issuance of regulations under certain specifically enumerated statutory sections. Section 701 (f) establishes a procedure for direct review by a court of appeals of a regulation promulgated under § 701 (e). : The Administrative Procedure Act was…