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COLUMBIA LAW REVIEW
Vol. 58 JANUARY, 1958 No. 1
TYPES OF JUDICIAL RELIEF FROM ADMINISTRATIVE

ACTION
MILTON M. CARROW*.
A significant but neglected aspect of litigation between private parties

and administrative agencies is the natuire of judicial relief from administra-
tive action or inaction. In the past this subject was obscured by the fact
that each of the traditional remedies combined the form of action with the
type of relief. Mandamus, for instance, was not only a method of instituting
judicial proceedings but was also designed to compel the performance of a
duty required by law.
Reform legislation and current proposals emphasize the abolition of
some or all of the traditional forms, such as certiorari, mandamus, and
prohibition, and the substitution of a simplified petition procedure.1 But
little or no consideration is given to the question of relief, thus leaving
lawyers and the courts ii doubt as to what can be achieved witf such a
-petition. They have, in fact, found it necessary to fall back upon the tradi-
* Member of the New York Bar; A.B., Syracuse University, 1933; LL.B.,'Harvard,
1937; Member of the Adfninistrative Law Committee of the Association of the Bar of the
City of New York; Member of the Section of Administrative Law, Subcommittee on Judicial
Review, American Bar Association.
This Article is to constitute a chapter in a textbook, now being prepared by the author,
which will be entitled "Judicial Control of Administrative Action in the United States."
1. In 1937 New York abolished the traditional remedies of certiorari, mandamus, and
prohibition. N.Y. Civ. PRAc. ACT, art. 78. In 1938, rule 81(b) of the Federal Rules of
Civil Procedure abolished mandamus as a form of proceeding in the federal courts, but
'the Administrative Procedure Act of 1946 may have revived all of the traditional writs.
60 STAT. 243 (1946), 5 U.S.C. § 1009 (1952); see S. Doc. No. 248, 79th Cong., 2d Sess. 325
(1946). In 1947, New Jersey superseded the prerogative writs, N.J. CONST. art. VI, § 5,
para. 4 (1947), by a ':Procedure in Lieu of Prerogative Writs." N.J. SUPER. CT. (CIV.)
RULiE 4:88-1 (1953). In 1954, Massachusetts enacted a State Administrative Procedure
Act which appears to bring it within the ranks of the abolitionists. I MAss. ANN. LAWS
c. 30A (Supp. 1956).
A renewed effort to provide a uniform federal judicial remedy against administrative
action is now under way. In 1955, the Hoover Commission Report recommended that
"a plain, simple and prompt judicial remedy should be made available for every legal wrong
resulting from agency action or inaction except where Congress expressly precludes judicial
review." COMMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT,
LEGAL SERVICES AND PROCEDURE, A REPORT TO CONGRESS 75 (1955). The Task Force
Report issued at the same time contained a proposed "Administrative Code" to replace the
Administrative Procedure Act. The code provided that administrative action not subject
to statutory review should be reviewable by a "petition for review." This was introduced
in Congress as H.R. 6114, 84th Cong., 1st Sess. § 207(b) (1955). A similar proposal appears
in a bill drafted April 13, 1957, by a Special Committee on Legal Services and Procedure of
the American Bar Association. See 9 AD. L. BtmL. 184 (1957).
COLUMBIA LAW REVIEW [Vol. 6;8
tional remedies for this information, thereby becoming entangled in their

2
intricate netvork of concepts, and defeating the purpose of the reform.
In this Article, an effort is made to identify the various types of relief,
in functional terms, based upon the experience of the courts with the tradi-
tional as well as the statutory remedies. 3
I. APPELLATE REVIEW OF FINAL DECISIONS

The most familiar type of relief from agency action is appellate in
nature: the court is called upon to review a final adjudicative determina-
tion 4 reached after formal proceedings which result in a trial record as well
5
as those following informal proceedings without such a record. Since no
legislation sufficiently broad to reach all instances of appellate review has
yet been enacted, practically every traditional form of remedy has been,
and still is, employed.
In the federal courts, where certiorari has been held to be unavailable'
and mandamus or its counterpart is limited to the District of Columbia
courts,7 injunction proceedings have been most frequently utilized to review
administrative decisions.8 In particular instances other remedies, such as
habeas corpus (after a person has been taken into the custody of administra-
2. Thus, it is common practice in the jurisdictions that have presumably abolished

the traditional forms to describe particular proceedings as actions "in the nature of manda-
mus." Clackamas County v. Mackay, 219 F.2d 479 (D.C. Cir. 1954), vacated as moot,
349 U.S. 909, 934 (1955) (here Judge Prettyman speaks of mandamus as though it never
were abolished); Gimprich v. Board of Educ., 306 N.Y. 401, 118 N.E.2d 578 (1954); Evans
v. Villani, 19 N.J. Super. 86, 93, 88 A.2d 1, 4 (App. Div. 1952).
3. No effort is made here to deal with the subject of damages or claims against govern-
mental agencies. These subjects have recently been dealt with in Developments in the Law-
Remedies Against the United States and its Officials, 70 HARv. L. REv. 829 (1957). See
also Note, JudicialReview of Administrative Adjudicatory Action Taken Without a Hearing,
70 HARV. L. REV.698 (1957), which approaches one aspect of the problem here dealt with
.in the functional terms suggested.
4. It is assumed here that the determination is "final" from the standpoint of ripeness
for review. In jurisdictional controversies, however, note that where an agency asserts
jurisdiction and initiates a proceeding, such action cannot be challenged until the entire
proceeding has been completed. See California Oregon Power Co. v. FPC, 150 F.2d 25
(D.C. Cir. 1945), cert. denied, 326 U.S. 781 (1946). However, a refusal to accept jurisdic-
tion does, in fact, terminate a proceeding, and is therefore a final reviewable decision. Peder-
sen v. NLRB, 234 F.2d 417 (2d Cir. 1956); Amalgamated Ass'n of Street, Elec. Ry. & Motor
Coach Employees, AFL v. NLRB, 238 F.2d 38 (D.C. Cir. 1956).
5. Agency rules are occasionally also dealt with in terms of appellate review. See
Amshoff v. United States, 228 F.2d 261 (7th Cir. 1955), holding a regulation issued by the
Secretary of Agriculture under the Packers and Stockyards Act to be a "final order" review-
able under the Hobbs Act. But see Magnolia Petroleum Co. v. FPC, 236 F.2d 785 (5th
Cir. 1956), cert. denied, 352 U.S. 968 (1957), holding that a regulation issued by the Federal
Power Commission under the Natural Gas Act was not an "order" reviewable under that
act. The review of rules is discussed herein under restraints against enforcement and de-
claratory relief. See text at notes 109-38 infra.
6. Degge v. Hitchcock, 229 U.S. 162 (1913).
7. See Davis, Mandatory Relief From Administrative Action in the Federal Courts,
22 U. Cm. L. REv.585 (1955).
8. Stark v. WicJkard, 321 U.S. 288 (1944); Shields v. Utah Idaho Cent. R.R., 305
U.S. 177 (1938); American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902).
19581 JUDICIAL RELIEF FROM ADMINISTRATIVE ACTION 3
tive officials), have been employed.9 And in the District of Columbia courts
certain actions "in the nature of mandamus" do essentially the same thing,
on the theory that the court is compelling the performance of "ministerial"
functions or reviewing an "abuse of discretion." 1
In the state courts the most likely remedy for this purpose has been
certiorari. In its unadulterated common law form, it was simply a method
whereby a superior tribunal obtained and reviewed the record made before
an inferior tribunal. 1 But this simple function has been complicated, par-
ticularly in the United States, by the requirement that the agency action
subject to review be "judicial" in nature. 12 The definition of "judicial" in
the certiorari cases has not been overly clear, and there has been considerable
confusion in the opinions on the subject.2 Such traditional remedies as
mandamus 14 and prohibition" have also been used in the state courts to
fill the gaps not covered by legislation.
There has, in fact, been considerable legislation on this type of relief,
9. Miller v. Overholser, 206 F.2d 415 (D.C. Cir. 1953) (habeas corpus challenging
commitment to hospital for the criminally insane). The declaratory judgment now performs
this appellate function in the case of deportation and exclusion orders. Brownell v. Tom We
Shung, 352 U.S. 180 (1956); Shaughnessy v. Pedreiro, 349 U.S. 48 (1955); McGrath v.
Kristensen, 340 U.S. 162 (1950). Formerly habeas corpus was used for this purpose.
Heikkila v. Barber, 345 U.S. 229 (1953) (deportation proceeding brought under 1917
statute).
10. McKay v. Wahlenmaier, 226 F.2d 35 (D.C. Cir. 1955). The court reversed a
determination by the Secretary of the Interior refusing to qualify an applicant for a gas
and oil lease on public lands and disqualify the one to whom it was granted. See also Garfield
v. United States ex rel. Goldsby, 211 U.S. 249 (1908), which held that the refusal of the
Secretary of the Interior to restore plaintiff to the membership rolls of the Chickasaw
Nation deprived him of "valuable rights" and could not be done without notice and hearing.
The fact that the decision of the court after appellate review requires affirmative action
on the part of the agency does not change the nature of the relief. See discussion dealing
with disposition in appellate proceedings, text at notes 30-39 infra.
11. De Smith, The Prerogative Writs, 11 CAmB. L.J. 40 (1950); see The King v. Elec-
tricity Comm'rs, [19241 1 K.B. 171 (1923).
12. Gifford v. Commissioner of Public Health, 328 Mass. 608, 105 N.E.2d 476 (1952)
(approval of a contract bid for the construction of a hospital held judicial in nature);
Erlandson v. Genesee County Employees' Retirement Comm'n, 337 Mich. 195, 59 N.W.2d
389 (1953) (determination whether court stenographers were "employees" entitled to pen-
sion benefits held judicial in nature).
13. The New York Court of Appeals has held that the approval of a limited dividend
housing project by a state agency is "administrative" rather than "judicial." Mount
Hope Development Corp. v. James, 258 N.Y. 510, 180 N.E. 252 (1932). Initial licensing
is said to be "administrative." Phillips v. McLaughlin, 82 R.I. 224, 107 A.2d 301 (1954).
In Georgia even revocation proceedings are "administrative." Southeastern Greyhound
Lines v. Georgia PSC, 181 Ga. 75, 181 S.E. 834 (1935), although most jurisdictions hold
such action to be judicial. See Annot., 102 A.L.R. 534 (1936).
14. Leland v. Kansas State Bd. of Chiropractic Examiners, 176 Kan. 334, 270 P.2d
255 (1954) (reversal of order revoking chiropractic license); Hazel Park Racing Ass'n, Inc. v.
Racing Comm'r, 336 Mich. 508, 58 N.W.2d 241 (1953) (reversal of revocation of racing
license); Hamlet Hospital and Training School for Nurses, Inc. v. Joint Comm. on Stand-
ardization, 234 N.C. 673, 68 S.E.2d 862 (1952) (reversal of determination refusing to renew
certification of nursing school).
15. This remedy is of course limited to challenging jurisdiction. Both Oregon and
Indiana recently recognized its use against administrative agencies for the first time.
State ex rel. Standard Oil Co. v. Review Bd., 230 Ind. 1, 101 N.E.2d 60 (1951); Southern
Pac. Co. v. Heltzel, 201 Ore. 1,268 P.2d 605 (1954).
COLUMBIA LAW REVIEW [Vol. 68
-particularly with respect to review of adjudicative determinations based

upon a trial record. Most federal legislation"6 provides for review of agency
orders by the filing of a petition by an "aggrieved" party in a court of ap-
peals. The agency is required to furnish a transcript of the record made be-
fore it, which constitutes the subject matter of the review proceeding. 7 The
Federal Administrative Procedure Act of 1946 added nothing to these essen-
tials, nor did it extend this kind of review to the orders of agencies whose
statutes did not provide for it. In 1950 the Hobbs Act 8 elaborated some-
.what on the procedural aspects and made appellate relief available to re-
view certain "final orders" of the FCC, the Secretary of Agriculture, the
United States Maritime Commission, and the Federal Maritime Board or
the Maritime Administration. 9 In 1954, orders of the Atomic Energy Com-
mission were made reviewable under this act. 0 The proposed "Administra-
tive Code" of the Hoover Commission Task Force would extend this type of
review to every agency "decision," although the proceeding would be insti-
21
tuted in the district court unless otherwise provided by statute.
Comparable legislation on this subject has been enacted by several
states,22 and the judicial review provisions of the Model State Administra-
28
*tive Procedure Act are almost entirely confined to this type of review.
-The most recent addition to the state legislation on the subject is the Massa-
chusetts Administrative Procedure Act,'2 which incorporates the judicial
review provisions of the Model State Administrative Procedure Act and
goes beyond the Model Act in other respects.
While most of the legislation deals with review of orders made after
formal adjudicative proceedings, many agency determinations, not reached
through such formal procedure, are nevertheless adjudicative in nature and
subject to an appellate type of review. 25 Since such proceedings produce no
:record of a trial type hearing,'6 the question arises whether different pro-
16. The prototype for most federal legislation has been the Federal Trade Commission
Act of 1914. 38 STAT. 717, as amended, 15 U.S.C. § 45(c) (1952).
17. At least thirty statutory provisions in various fields of federal regulation, embracing
-orders of practically all of the major agencies, provide for this type of appellate review.
See Developments in the Law-Remedies Against the United States and Its Officials, 70 HARV.
-L.REV. 827, 904 (1957).
18. 64 STAT. 1129 (1950), as amended, 5 U.S.C. §§ 1031-42 (1952).
19. Formerly these orders had been reviewable by a three-judge district court, a
method presently applicable to orders of the Interstate Commerce Commission. 28 U.S.C.
§ 2325 (1952).
20. 68 STAT. 955 (1950), 42 U.S.C. § 2239 (Supp. IV, 1957).
21. COMMISSIONON ORGANIZATION OF THE ExEcuTIvE BRANCH OF THE GOVERNMENT,
TASK FORCE REPORT, REPORT ON LEGAL SERVICES AND PROCEDURE, 373-74 (1955).
22. See, e.g., N.Y. Civ. PRAc. ACT § 1296 (appellate review of agency determination
after hearing required by statute).
23. Section 12.
24. 1 MASS. ANN. LAWS c. 30A (Supp. 1956).
25. Note, Judicial Review of Administrative Adjudicatory Action Taken Without a
'Hearing,70 HARV. L. REV. 698 (1957).
26. The question whether due process requires such a hearing is not dealt with here.
1958] JUDICIAL RELIEF FROM ADMINISTRATIVE ACTION 5
cedures as well as broader standards should be employed by the reviewing

courts. The Hobbs Act, section 7b, provides that if a petition for review of
action taken without a hearing is filed in the court of appeals,
the court of appeals shall . . . where a hearing is not required by
law, and a genuine issue of material fact is presented, transfer the
proceeding to a United States district court for the district where
the petitioner or any petitioner resides or has its principal office for
hearing and determination as if such proceedings were originally
initiated in the district court.27
The Hoover Commission Task Force recommends that such trial de novo
2 8
be provided in all cases where there have been no agency hearings.
Review itself, of course, is not the ultimate relief which the court gives.
The statutes offer a wide variety of terms for such relief, e.g., affirm, enforce,
set aside, annul, reverse, modify, remand, compel, restrain, enjoin, suspend,
determine validity of, and review. 29 Obviously a number of these are synon-
ymous and can be dispensed with. Those that describe the actual variations
of the types of relief include the following: affirm, reverse, compel, restrain,
remand, and modify.
Judgments affirming or reversing final decisions need little comment.
Some confusion arises, however, from the fact that often a reversal of a final
decision either requires an agency to take affirmative steps or prevents it
from taking intended action. Many cases consider these as instances of
mandatory and injunctive relief and there have been statements, for exam-
ple, that the affirmative nature of the action required on the part of the
agency is a decisive factor in determining the relief available."0 This view
27. 64 STAT. 1130 (1950), 42 U.S.C. § 2239 (1952).

28. COMMISSION ON ORGANIZATION OF THE EXEcUTIVE BRANCH OF THE GOVERNMENT,
TASK FORCE REPORT, REPORT ON LEGAL SERVICES AND PROcEDURE 212 (1955). A further
factor requiring different standards of review is the inapplicability of the substantial
evidence rule. See generally Note, Judicial Review of Administrative Adjudicatory Action
Taken Without a Hearing,70 HARV. L. REV. 698 (1957).
29. The Federal Trade Commission Act provides that the court "shall have the power
to make and enter . . .a decree affirming, modifying or setting aside the order of the
Commission, and enforcing the same to the extent that such order is affirmed . . . " 38
STAT. 719 (1914), as amended, 15 U.S.C. § 45(c) (1952). The Hobbs Act provides that
"the court of appeals shall have exclusive jurisdiction to enjoin, set aside, suspend (in whole
or in part), or to determine the validity of, all final orders . . . ." 64 STAT. 1129 (1950),
5 U.S.C. § 1032 (1952). Orders of the Securities and Exchange Commission may be "modi-
fied or be set aside in whole or in part." 48 STAT. 80 (1933), as amended, 15 U.S.C. § 77(i)
(1952). The Massachusetts Administrative Procedure Act provides that "the court may
affirm the decision of the agency, or remand the matter for further proceedings before the
agency; or the court may set aside or modify the decision, or compel any action unlawfully
withheld or unreasonably delayed . . . ." 1 MASS. ANN. LAws c. 30A, § 14(8) (Supp. 1956).
30. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682 (1949). In a foot-
note not really germane to the issues in the case the Court said: "Of course, a suit may fail,
as one against the sovereign, even if it is claimed that the officer being sued has acted uncon-
stitutionally or beyond his statutory powers, if the relief requested cannot be granted by
merely ordering the cessation of the conduct complained of but will require affirmative
action by the sovereign or the disposition of unquestionably sovereign property." Id. at 691
seems clearly erroneous. In the mandamus cases, as we have seen, it is a

generally accepted principle that the court, despite the rule that the exercise
of discretion by an agency is not subject to review by mandamus, can set
aside discretionary action as an "abuse of discretion" or as an "arbitrary
and capricious" exercise thereof. In many instances the so-called discretion
is an exercise of the adjudicatory function. Or the court may say that it is
compelling "ministerial" action which also really constitutes adjudicatory
action in the light of current definitions. 3 In these instances the court is in
fact sitting as an appellate tribunal in review of the agency adjudicative
determination. The extent of the power of the court does not really depend
upon whether "specific" relief is to be granted or whether the relief takes
the form of an affirmative or negative direction. It is obvious that the effect
2
on the agency may be equally serious under any of these circumstances,
If the affirmative relief amounts to unwarranted supervision of the adminis-
trative process, then the relief should not be granted for that reason,33 and
not because of its affirmative nature.
In fact, however, the courts have not refused to review administrative
action simply because their judgments would require affirmative action.
34
The classic example is American School of Magnetic Healing v.McAnnuly,
where an injunction was granted prohibiting the Postmaster General from
refusing to deliver mail to plaintiff, on the ground that the statute was
improperly construed.
In order to avoid dealing with the concepts of mandamus, the courts
often rephrase their judgments in terms of injunctive relief. For example,
in Schachtman v. Dulles,3" the Secretary of State was enjoined from denying
the issuance of a passport without a hearing, the court saying: "Appellant
does not ask that the Secretary be required by the court to issue the passport.
He seeks in this court only a ruling to the effect that the denial thus far
has been on a ground that is legally insufficient."3 Since the ground to
which the court referred was the only one at issue, the only possible relief
was the issuance of the passport.
In a recent New York case, however, such distinctions were brushed
aside." This was an article 78 proceeding to direct the fire commissioner to
n.1l. This footnote is discussed in Clackamas County v. McKay, 219 F.2d 479 (D.C. Cir.
1954), vacated as moot, 349 U.S. 909 (1955), and also in West Coast Exploration Co. v.
McKay, 213 F.2d 582, 596 (D.C. Cir.), cert. denied, 347 U.S. 989 (1954). See also Jones,
Jurisdiction of the Federal Courts to Review the Character of Military Administrative Dis-
charges, 57 CoLum. L. REV. 917,953-54 (1957).
31. McKay v. Wahlenmaier, 226 F.2d 35 (D.C. Cir. 1955).
32. See Davis, supra note 7, at 590; cf. West Coast Exploration Co. v. McKay, 213
F.2d 582 (D.C. Cir.), cert. denied, 347 U.S. 989 (1954).
33. Nichols v. Dacey, 329 Mass. 598, 109 N.E.2d 644 (1953).
34. 187 U.S. 94 (1902).
35. 225 F.2d 938 (D.C. Cir. 1955).
36. Id. at 940.
37. O'Reilly v. Grumet, 308 N.Y. 351,126 N.E.2d 275 (1955).
1958] JUDICIAL RELIEF FROM ADMINISTRATIVE ACTION "7
refrain from assigning petitioners, who were fire captains, to battalion chief
jobs for unusually long periods of time, simply for budgetary purposes.
Although this was really an action to restrain, and although injunctions do
not come within the scope of article 78, the court simply said: "Since Arti-
cle 78 proceedings are appropriate to require a public officer to do his duty,
they are equally appropriate here." 3
Immeasurable simplification of problems could result from the func-
tional treatment here proposed. Instead of drawing tortuous distinctions
between ministerial and discretionary acts, lawyers and judges could proceed
directly to the real issues, namely the extent of review and the procedure
before the appellate tribunal.39
Frequently a court disposes of a matter by remanding it to the agency
"without deciding the merits, where justice demands that course in order
that some defect in the record may be supplied."40 Remand is used not only
to complete or supplement the record, but also to require an agency to
follow proper procedure, 41 or to give it an opportunity to act on the merits
42
when the court believes it should.
A number of statutes provide that a reviewing court may "modify" an
administrative order, but the courts have construed this power very nar-
rowly. Two Supreme Court cases illustrate the obstacles encountered. In
Jacob Siegel Co. v. FTC,4 3 Mr. Justice Douglas, speaking for the Court,
indicated by dictum that where the power to modify is specifically provided
by statute, a court's authority "extends no further than to ascertain whether
44
the Commission made an allowable judgment in its choice of the remedy."
However, in FPC v. Idaho Power Co., 45 also involving a statute giving
the court power to modify, the Court, again speaking through Mr. Justice
Douglas, found that certain conditions attached to an order of the Federal
Power Commission authorizing the construction of a hydro-electric project
were administrative in nature and that the power to modify "is not [a] power
38. Id. at 358,126 N.E.2d at 279.
39. There are, however, certain areas where mandatory and injunctive relief are qualita-
tively different from these instances which in nature constitute appellate relief. These are
discussed hereafter under the categories of compelling the initiation of action and restraining
the enforcement of threatened action. See text at notes 92-120 infra.
40. Ford Motor Co. v. NLRB, 305 U.S. 364, 373 (1939). Most of the statutes dealing
with appellate review of agency action based on a trial record provide that if additional
evidence is required the matter should be remanded to the agency to receive it. See the
Federal Trade Commission Act, 38 STAT. 717 (1914), as amended, 15 U.S.C. § 45(c) (1952),
which has served as the prototype for many of the statutes. And where a statute does not
provide for remand it has been held that a court has inherent power to do so. Fleming v.
FCC, 225 F.2d 523 (D.C. Cir. 1955).
41. Greenville Television Co. v. FCC, 221 F.2d 870 (D.C. Cir. 1955).
42. American Broadcasting Co. v. FCC, 191 F.2d 492 (D.C. Cir. 1951).
43. 327 U.S. 608 (1946).
44. Id. at 612. He also said: "The power to modify extends to the remedy .... " Id.
at 611. However, this case was remanded for additions to the record.
45. 344 U.S. 17 (1952).
COLUMBIA'LAW REVIEW [Vol. 88
to exercise an essentially administrative function."4 Nevertheless, the

United States Court of Appeals for the Seventh Circuit applied Mr. Justice
Douglas' Siegel dictum, 7 finding that a clause in an FTC cease and desist
order could be modified on the ground that it was not an allowable judgment
48
in the choice of remedy.
49
II. INTERVENTION IN PENDING ADMINISTRATIVE PROCEEDINGS
Essentially different from appellate relief is judicial intervention in

pending administrative proceedings." Here the court supersedes the agency
before the latter has made a final determination on the merits, and thus
supplants rather than reviews administrative action. In these instances
there is a head-on clash between the courts and the agencies, one which often
reaches fundamental questions of separation of powers.
Apparently, however, the courts have not seriously questioned, on
constitutional grounds, their power to act in this manner. When they have
denied relief it generally has been either on the ground that the agency
has the authority to do what it is doing or that there has been no violation of
legal rights. Nevertheless, the courts have been sensitive to the conflict, and,
at least in federal jurisdictions, have exercised considerable self-restraint.
This is manifested by their invention of the doctrine that administrative
46. Id. at 21.

47. See note 44 supra.
48. Carter Products, Inc. v. FTC, 186 F.2d 821, 826 (7th Cir. 1951). But see Consumer
Sales Corp. v. FTC, 198 F.2d 404 (2d Cir. 1952), cert. denied, 344 U.S. 912 (1953).
49. This and the following sections constitute a revision of a previous article, Carrow,
Judicial Intervention to Restrain Pending and Threatened AdministrativeAction, 1 HowAIRD
L.J. 63 (1955).
50. The type of relief here discussed has its background in the common law remedy of
prohibition. That proceeding is conditioned on three factors: (1) that the administrative
action is pending and not completed, United States v. Hoffman, 71 U.S. (4 WALL.) 158, 161
(1866); see The King v. Electricity Comm'rs, [1924] 1 K.B. 171 (1923); State ex rel. Kassa-
bian v. Board of Medical Examiners, 68 Nev. 455, 235 P.2d 327 (1951); New York v. Malt-
bie, 248 App. Div. 36,289 N.Y. Supp. 558 (3d Dep't 1936); (2) that the agency's jurisdiction
is questioned; and (3) that the agency action is judicial in nature, Smith v. Whitney, 116
U.S. 167, 176 (1886). In many state courts this remedy is still available. In both Oregon
and Indiana it was recently employed for the first time to intervene in pending administra-
tive action. Southern Pac. Co. v. Heltzel, 201 Ore. 1, 268 P.2d 605 (1954); State ex rel.
Standard Oil Co. v. Review Bd., 230 Ind. 1, 101 N.E.2d 60 (1951); see Riesenfeld, Bauman
& Maxwell, Judicial Controlof AdministratireAction by Means of the ExtraordinaryRemedies
in Minnesota, 36 MINN. L. REv. 435,447 (1952). In the federal courts, however, prohibition
appears to be rarely used, the injunction generally being employed for the same purpose.
Also, as is the case with all of the traditional remedies, because of their narrow and technical
limitations, other forms are often utilized to grant the same relief, thus obscuring any dis-
tinctive qualities that might make the writs useful in a functional sense. The declaratory
judgment proceeding has been employed to obtain this kind of relief. New York Post Corp.
v. Kelley, 296 N.Y. 178, 71 N.E.2d 456 (1947). In New Jersey a proceeding in lieu of cer-
tiorari has been used. Baldwin Constr. Co. v. Essex County Bd. of Taxation, 16 N.J. 329,
108 A.2d 598 (1954). In the federal courts an action "in the nature of mandamus" has been
employed to do the same. Callaway County Agricultural Stabilization and Conservation
Comm. v. Missouri Agricultural Stabilization and Conservation Comm., 122 F. Supp. 541
(W.D. Mo. 1954).
remedies must be exhausted before judicial relief is sought, and of the related
doctrines of primary jurisdiction and ripeness for review.A1
The kinds of administrative proceedings which may be subjected to
judicial intervention are adjudication (either formal or informal), licensing,
and investigation.12 The three factors which seem significant in deciding
whether or not a court should intervene are (1) the legality of the agency
action, (2) the infliction of irreparable injury by the continuation of the
agency proceeding, and (3) the extent to which such private injury is offset
by the public interest.
A. Legality of Agency Action

Administrative proceedings may be unlawful either because they are
ultra vires or because they violate a legal right or privilege. Ultra vires ques-
tions may involve a statutory interpretation of powers or a question of
applicability. Thus, where an agency is exercising a power that was not
delegated to it but to another agency5" there is a basis for intervention.
With respect to ultra vires issues, the courts are divided on the question
whether the raising of a "persuasive" argument as to the agency's lack of
jurisdiction is enough, without a showing of irreparable injury, to warrant
judicial intervention. While the federal courts since Myers v. Bethlehem
Shipbuilding Corp. 4 have consistently held that a challenge to the jurisdic-
tion is not of itself a basis for intervention,5 5 the highest courts of both New
51. See DAvis, ADMINISTRATIVE LAW 614 (1951).

52. It is hardly likely that rule-making proceedings can be thus interrupted since
judicial action at this juncture would most likely be premature or fail for lack of a jus-
ticiable controversy. Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908). But see
Gorman v. Phoenix, 70 Ariz. 59, 216 P.2d 400 (1950) (injunction granted against City of
Phoenix preventing it from passing an ordinance annexing certain contiguous territory
because petitions were defective).
53. Farmer v. United Elec. Workers, 211 F.2d 36 (D.C. Cir. 1953), cert. denied, 347
U.S. 943 (1954). Pursuant to the requirements of the Labor Management Relations Act
of 1947, officers of plaintiff union had filed non-communist affidavits. The NLRB instituted
a proceeding to compel the officers to affirm the truth of the statements made in their
affidavits. The court intervened to enjoin this proceeding because the power to investigate
the truth or falsity of the affidavit, the court felt, was within the province of the Justice
Department, but not of the Board. Irreparable injury was shown by the fact that, at the
time the proceeding was instituted, the general counsel of the Board had issued instructions
to regional directors throughout the country not to grant certification in representation
proceedings to plaintiff union and not to issue any complaints on charges of unfair labor
practices by plaintiff. This, the court said, "deprived and, but for the injunction issued
below, would have continued to deprive the Unions of crucial benefits under the Act and
this without any sort of prior hearing. In these circumstances, it can hardly be said that the
action assailed is not ripe for review, or that the Unions should be required to exhaust a
dubious opportunity for hearing offered to them after the axe had fallen, or that there is an
adequate remedy at law for the injuries resulting from the Board's unlawful action." Id. at
40. But see Macauley v. Waterman S.S. Corp., 327 U.S. 540 (1946) (refusal to intervene
when plaintiff claimed agency had proceeded against persons not covered by statutory
authorization).
54. 303 U.S. 41 (1938).
55. It should be noted that Myers involved a statute which lodged "exclusive jurisdic-
tion" in the agency. However, in a later case the Supreme Court indicated, although it did
A0o . COLUMBIA LAW REVIEW [Vol. 58
York and New Jersey have held that it is. 51 But though the principle itself
is thus simply stated, the nature of the jurisdictional issue is not. The
difficulty in ascertaining what is and what is not a jurisdictional question is
compounded where the question involves factual issues. Ordinarily, where
the issue is one of coverage, such as whether a person is an employee within
the terms of an applicable labor law or whether a particular business operates
7
in interstate commerce, such questions of fact are raised.
There is a similar confusion in the cases even where the illegality is not
jurisdictional in nature, both federal and state courts being divided as to
whether intervention is warranted without considering the questions of
irreparable injury or over-riding public interest. Such non-jurisdictional
illegality may consist of an agency's violation of a person's statutory or
constitutional rights. A notable example of all these elements is Parker v.
Lester.5 In that case merchant seamen were denied employment unless
they had obtained a security clearance from the Coast Guard. Such clear-
ance could be denied without hearing, and the only remedy was an appeal
to local and national boards, a procedure which extended for months or
years. After denial of clearance, but without pursuing the appellate rem-
edies, the action was brought. The United States Court of Appeals for the
Ninth Circuit granted injunctive and declaratory relief despite failure to
exhaust the administrative remedies, maintaining that the "right to earn a
livelihood . . . [is] -one entitled to protection at the hands of a court of
equity," that the seamen were unconstitutionally deprived of this right
by the failure to provide for a hearing, and that loss of employment con-
stituted irreparable injury. Balancing the interest of national security
against the constitutional safeguards of due process, the court contended
not decide, that even where such a statute is present an adequate showing of irreparable
injury may warrant intervention. Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S.
752 (1947). It should also be noted that the Myers case was a reversal of the position for-
merly taken by the Supreme Court in Skinner & Eddy Corp. v. United States, 249 U.S. 557
(1919). In a case where there was no statute delegating exclusive jurisdiction to the agency
the Supreme Court nevertheless refused to intervene where irreparable injury was not
proved. Petroleum Exploration, Inc. v. Public Serv. Comm'n, 304 U.S. 209 (1938).
56. New York Post Corp. v. Kelley, 296 N.Y. 178, 71 N.E.2d 456 (1947); Ward v.
Keenan, 3 N.J. 298,70 A.2d 77 (1949); see Georgia Power Co. v. Georgia Pub. Serv. Comm'n,
211 Ga. 223, 85 S.E.2d 14 (1954); Schwartz, Jurisdictionto DetermineJurisdictionin Federal
AdministrativeLaw, 38 GEO. L.J. 368 (1950).
57. Of course, in those jurisdictions where intervention is allowed on a challenge to the
agency's jurisdiction, the presence of such factual issues does not affect the decisions of the
courts. The decision of the New York Court of Appeals in New York Post v. Kelley has been
criticized on this ground. Benjamin, Judicial Review of AdministrativeAdjudication: Some
Recent Decisions of the New York Courtof Appeals, 48 CoLuM. L. REV. 1, 9 (1948). It should
be noted at this point that, where such junsdictional or constitutional facts are present,
there is a line of cases in the federal as well as the state courts holding that review of a final
agency determination must be de novo. See Jaffe, JudicialReview: Constitutionaland Juris-
dictionalFact, 70 HARV. L. REV. 953 (1957).
58. 227 F.2d 708 (9th Cir. 1955).
that compliance with the procedural requirements of the fifth amendment

would not unduly burden the Coast Guard. 9
But there is considerable disagreement among both the federal and
state courts as to whether intervention is warranted where there has been a
"clear" violation of a legal right without more. In Wettre v. Hague," the
United States Court of Appeals for the First Circuit held that a veteran
could bring an action to restrain the commandant of the Boston Navy
Yard from demoting him, even though he had not appealed to the Civil
Service Commission as provided in the Veterans Preference Act, where it
was shown that non-veterans of similar positions were not so demoted.
Quoting from Order of Railway Conductors v. Pitney, 61 the court said: "Of
course, where the statute is so obviously violated that 'a sacrifice or oblitera-
tion of a right which Congress . . . created' to protect the interest of in-
dividuals or the public is clearly shown, a court of equity could, in a proper
case, intervene. ' 6 2 In contrast, the United States Court of Appeals for the
District of Columbia Circuit recently remarked: "The fact that adminis-
trative action is probably erroneous does not create an exception to the rule
that administrative processes must be exhausted before judicial relief is
sought.""3
Despite this decision the district court for the District of Columbia
subsequently restrained the -Secretary of the Air Force from reducing the
civil service rank of a federal employee, where the employee showed that he
had more credits than other employees who were not being demoted, al-
64
though he had not exhausted Civil Service Commission procedure.
The state courts are also in disagreement. In New Jersey, apparently,
a claim of unconstitutional discrimination in tax assessments opens the door
to intervention, 5 while in Minnesota, the "cases uniformly hold that ad-
ministrative action which has not reached a stage causing plaintiff irrepara-
ble injury cannot be enjoined even though the anticipated decision of the
administrative agency is questioned on constitutional grounds." 6
59. But see Smith v. Duldner, 175 F.2d 629 (6th Cir. 1949) (refusal to intervene prior
to exhaustion of administrative remedies even though failure of due process was alleged).
60. 168 F.2d 825 (1st Cir. 1948).
61. 326 U.S. 561,566 (1946).
62. 168 F.2d at 826.
63. Johnson v. Nelson, 180 F.2d 386 (D.C. Cir.), cert. denied, 339 U.S. 957 (1950);
Young v. Higley, 220 F.2d 487 (D.C. Cir. 1955); accord, Johnson v. War Assets Administra-
tion, 171 F.2d 556 (7th Cir. 1949).
64. "[W]here there is a clear violation of plaintiff's legal rights, there is no longer any
occasion for the plaintiff to exhaust administrative remedies before seeking vindication in
Court." Group v. Finletter, 108 F. Supp. 327,329 (D.D.C. 1952).
65. Baldwin Constr. Co. v. Essex County Bd. of Taxation, 16 N.J.2d 329, 108 A.2d 598
(1954); see Joy v. Winstead, 70 Idaho 232, 215 P.2d 291 (1950).
66. Thomas v. Ramberg, 240 Minn. 1, 6, 60 N.W.2d 18, 21 (1953). This was an action
by certain retail business employers to enjoin members of the Industrial Commission from
holding public hearings on an advisory board's recommendation for minimum wages for
B. IrreparableInjury
Establishment of the presence or imminence of irreparable injury is a
separate problem for each case. No general principle can be stated that is
determinative, but an examination of the circumstances which have in-
fluenced the courts to find that irreparable injury is threatened seems war-
ranted.
One of the most commonly asserted injuries is that of expense. While
the Supreme Court has held in one case that the expense of preparing for and
conducting a hearing before an administrative agency is not sufficient injury
to warrant intervention,17 the element of expense in a subsequent case,
where the power of the agency to act was plainly questionable, bolstered
the Court's decision to uphold the district court action granting an injunc-
tion.68
Agency action actually causing loss of employment has also been held
determinative, 9 although threatened loss of government employment has
been held insufficient. 0 The injury may be of sufficient seriousness to
warrant intervention when there is an actual or threatened loss of "crucial
benefits" under the National Labor Relations Act,7" a loss of commercial
fishing rights plus liability for criminal penalties 7 2 a disruption of con-
tractual obligation,7 a threat of disclosure of confidential information by
women and children. Plaintiffs claimed that the advisory board had been illegally con-
stituted, but the injunction was denied as premature. It should be noted that, following this
decision, the hearings were completed and a minimum wage order was issued. After two
trips to the supreme court the order was finally held invalid. See Ramberg v. District Court,
241 Minn. 194, 62 N.W.2d 809 (1954); Thomas v. Ramberg, 245 Minn. 474, 73 N.W.2d 195
(1955).
67. Petroleum Exploration, Inc. v. Public Serv. Comm'n, 304 U.S. 209 (1938). Here
the estimated expense was $25,000. The company was worth about one and a half million
dollars and had an annual income of S350,000. "When the only ground for interfering with
the state procedure is the cost of preparing for a hearing, there is no occasion for an equitable
intervention." Id. at 223. See also Thomas v. Ramberg, 240 Minn. 1, 60 N.W.2d 18 (1953).
68. Public Util. Comm'n v. United Fuel Gas Co., 317 U.S. 456, 469 (1943) (Frank-
furter, J.):
First, and most important, the orders of the state commission are on their face
plainly invalid. No inquiry beyond the orders themselves and the undisputed facts
which underlie them is necessary in order to discover that they are in conflict with
the federal Act. If, therefore, United complies with these orders, it will be put to
the expenditures incident to ascertaining the base for rate-fixing purposes-ex-
penses which may ultimately be borne by the consuming public and which Con-
gress, by conferring exclusive jurisdiction upon the federal regulatory agency,
necessarily intended to avoid. If United does not comply with the orders, it runs
the risk of incurring heavy fines and penalties or, at the least, in provoking need-
less, wasteful litigation. In either event, enforcement of the Commission's orders
would work injury not assessable in money damages, not only to the appellee but
to the public interest which Congress deemed it wise to safeguard by enacting the
Natural Gas Act. In these circumstances, we cannot set aside the decree of the
District Court as an improper exercise of its equitable jurisdiction.
69. Parker v. Lester, 112 F. Supp. 433 (N.D. Cal. 1953).
70. United Pub. Workers, CIO v. Mitchell, 330 U.S. 75,89-91 (1947).
71. Farmer v. United Elec. Workers, 211 F.2d 36 (D.C. Cir. 1953), cerl. denlied, 347
U.S. 943 (1954).
72. Hynesv. Grimes Packing Co., 337 U.S. 86 (1949).
73. B. F. Goodrich Co. v. FTC, 208 F.2d 829 (D.C. Cir. 1953); see Columbia Broad-
casting System, Inc. v. United States, 316 U.S. 407 (1942).
the agency, 4 defamatory action such as listing a group as a subversive

organization," or threatened eviction.76 But threats to bank credit, 77 public
relations, or employee morale" have been held not sufficiently serious to
79
warrant enjoining administrative proceedings.
In addition, circumstances arise that are peculiar to the nature of the
problem and warrant judicial intervention. Thus, where it would be futile
to seek further administrative relief,80 or where final administrative action
would not be reviewable, the court may intervene. 8'
C. PrivateInjury and Public Interest

In a number of intervention cases there may be a claim that a dominant
public interest counterbalances private irreparable injury. For example, in
Parkerv. Lester82 the Government claimed that Coast Guard security pro-
ceedings should be upheld in the interest of national security, but the court
held they violated the individual's right to procedural due process. Another
area in which the interest of the state conflicts with private rights is in the
prosecution of criminal proceedings. The courts frown upon interference by
injunction with such prosecution, since such rights ordinarily can be asserted
as a defense in the criminal action. Yet there are many instances where the
courts have departed from this view either on the ground that a "multiplic-
ity" of prosecutions were in prospect or that "exceptional" circumstances
were present. In Kenyon v. City of Chicopee,8' members of Jehovah's Wit-
nesses were arrested for distributing handbills in violation of a local ordi-
nance. Since these people were exposed to successive arrests, the Massa-
74. Utah Fuel Co. v. National Bituminous Coal Comm'n, 306 U.S. 56 (1939).
75. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951).
76. Peters v. New York City Housing Authority, 128 N.Y.S.2d 224 (Sup. Ct. 1953).
This case was reversed after the Attorney General provided for hearings for subversive
organizations. 283 App. Div. 801, 128 N.Y.S.2d 712 (2d Dep't 1954). However, the ap-
pellate division was reversed on other grounds, 307 N.Y. 519,121 N.E.2d 529 (1954).
77. Allen v. Grand CentralAircraft Co., 347 U.S. 535 (1954).
78. Twentieth Century Airlines, Inc. v. Ryan, 74 Sup. Ct. 8 (1953) (Reed, Circuit
Justice).
79. For additional examples, see Note, 1rreparableInjury in Constitutional Cases, 46
YALE L.J. 255 (1936).
80. Koepke v. Fontecchio, 177 F.2d 125 (9th Cir. 1949). In a California case an appli-
cation for a zoning variance was filed in accordance with existing law but during its pendency
an ordinance was passed depriving the Zoning Administrator and the Board of Zoning
Appeals of power to grant the variance. In such a case the court stated it could intervene.
Bernstein v. Smutz, 83 Cal. App. 2d 108 (1947). See DAvis, ADMINISTRATiVE LAW 625-31
(1951).
81. Chambers v. Robertson, 183 F.2d 144 (D.C. Cir. 1950), rev'd on other grounds, 341
U.S. 37 (1951). This was a federal case in whiih an Army Review Board, in considering the
discharge of an Army captain, had before it certain medical reports, apparently in violation
of a statutory provision. It was held that the court could intervene because in this case
final action of the Board was dependent upon approval by the President, whose act was not
reviewable. See also 64 HARV. L. REv. 491 (1951).
82. 227 F.2d 708 (9th Cir. 1955).
83. 320 Mass. 528, 70 N.E.2d 241 (1946).
chusetts court held that an injunction was available to review the legality of
an official action. 84 And in Hynes v. Grimes Packing Co., 85 the Supreme
Court allowed an injunction to restrain enforcement of criminal prosecution
of commercial fishermen for violating regulations prohibiting fishing in cer-
tain Alaskan waters since their livelihood was at stake. "While ordinarily
criminal prosecutions will not be restrained even under an invalid statute, a
civil action will lie in exceptional circumstances that make an injunction
necessary to effectually protect property rights."8
In actions brought to restrain the collection of taxes a similar situation
is found. Since the economic existence of the government depends upon the
collection of taxes it is a general rule that such collection will not be en-
joined, the taxpayer's remedy being an action for refund.
The applicable federal statute provides that "no suit for the purpose of
restraining the assessment or collection of any tax shall be maintained in"
any court."' ' Yet the courts, unwilling to accept this at face value, have
recognized two general exceptions: where a purported tax is really a pen-
alty, 88 or where "special and extraordinary circumstances" exist, 8 collection
will be restrained. Most states apparently follow the rule that the taxpayer
must rely on the statutory refund machinery to recover the payment of
illegal taxes," although there are instances where exceptions similar to those
in the federal cases apply.9'
III. COMPELLING INITIATION OF AGENCY ACTION
The situation is somewhat different when one seeks to compel an agency

to initiate action. The court here is not being asked to review a final decision
in the appellate sense nor to take over a pending proceeding. 2
84. But cf. Beal v. Missouri Pac. R.R., 312 U.S. 45 (1941). In this case a railroad
sought to enjoin an attorney general of Nebraska from prosecuting it for violating the
"Full Train Crew" law. Instead of employing brakemen and flagmen, as required by the
statute, the plaintiff combined the duties of brakeman and porter and flagman and porter
on its trains. The Court denied the injunction, saying that there was no real threat of a
multiplicity of prosecutions since one action would resolve the question of the legalityof
the statute.
85. 337 U.S. 86 (1949).
86. Id. at 98-99; see Tucker v. City of Ocilla, 209 Ga. 278, 71 S.E.2d 652 (1952).
87. INT. REV. CODE OF 1954, § 7421 (a).
88. Lipkev. Lederer, 259 U.S. 557 (1922).
89. Miller v. Standard Nut Margarine Co., 284 U.S. 498 (1932); see Note, Enjoining
the Assessment and Collection of Federal Taxes Despite Statutory Prohibition,49 HARV. L.
REv. 109 (1935).
90. Simpson, Fifty Years of American Equity, 50 HARV. L. REV. 171, 232 (1936).
91. See Department of Treasury v. Riagely, 211 Ind. 9, 4 N.E.2d 557 (1936) (filing of
tax lien creating cloud upon real estate title held enjoinable).
92. The kind of relief here dealt with is obviously limited to a rather narrow class of
cases. It does not encompass all instances where the courts in making final disposition of an
action require an agency to take affirmative steps. This, as has already been pointed out
in the discussion of disposition of cases where appellate relief is sought, is not a significant
problem. Most final judgments adverse to administrative agencies require that they take
In a recent case the United States Court of Appeals for the Second
Circuit compelled the Panama Canal Company to fix new toll charges for
canal users.9 3 Chief Judge Clark, for the court, said that "defendant's re-
fusal to start the machinery for toll changes is like a court's refusal to start
the process of adjudication by granting a defendant's motion to dismiss a
complaint." 94 Such an initiatory type of relief has been granted in a number
of other instances, compelling a deadlocked board to proceed, 9 a state official
to issue regulations governing the installation of sanitary facilities for rail-
road employees, 9 school district trustees to hold a meeting when the proper
number of residents filed a petition, 9 and county commissioners to redistrict
a county when the proper conditions arise.99 Under the traditional forms,
this relief would ordinarily be sought in a mandamus proceeding, although,
as we have seen, mandamus also has been employed to perform an appellate
function. 99
In these instances there is a latent separation of powers problem which
has not been explored very intensively by the courts. They have, however,
devised principles of self-restraint which reflect an awareness of the poten-
tial conflict. In applicable instances the courts have said that it is not their
function to supervise the administrative process and they consequently will
not impose a general course of conduct on an agency. Relief will be limited to
compelling the agency to perform a specific act.1"' Courts also exercise self-
certain affirmative steps or restrain them from taking any steps at all. The important
considerations that have a bearing on the judicial action are the nature of, and the stage of,
the administrative proceeding which is being subjected to judicial scrutiny. The present
inquiry is concerned with cases where the agency has failed to take any dispositive action
and the problem is whether it is appropriate for a court to compel it to do so.
93. Grace Line, Inc. v. Panama Canal Co., 243 F.2d 844 (2d Cir. 1957).
94. Id. at 853. Although the court recognized that mandatory relief is ordinarily not
available against agencies outside of the District of Columbia it distinguished this case on
the questionable ground that the defendant was a government corporation.
95. City of NewYorkv. Schoeck, 294 N.Y. 559, 63 N.E.2d 104 (1945).
96. Brotherhood of Railroad Trainmen v. Walker, 337 Pa. 396,105 A.2d 363 (1954).
97. People ex rel. Chamberlin v. Trustees of Schools, 319 Ill. App. 370, 49 N.E.2d 666
(1943); cf. Cutler v. Town of Hempstead, 3 N.Y.2d 334 (1957) (town board compelled to
consent to petition for annexation of certain territory).
98. State ex rel. Ratner v. Jones, 114 Kan. 726, 220 Pac. 275 (1923).
99. The same relief is sometimes available where the method is not mandamus. Thus,
in a declaratory judgment action, the Supreme Court held that a court can resolve a dead-
lock between two divisions of the National Railroad Adjudgment Board. Order of Railway
Conductors v. Swan, 329 U.S. 520 (1947). And in an appeal proceeding under the Federal
Communications Act the court of appeals directed the FCC to make a final determination
on a pending application for a permanent broadcasting license after the Commission had
delayed for ten years by issuing temporary licenses to a competitor. American Broadcasting
Co. v. FCC, 191 F.2d 492 (D.C. Cir. 1951).
100. In Nichols v. Dacey, 329 Mass. 598, 109 N.E.2d 644 (1953), the Supreme Judicial
Court of Massachusetts held that mandamus will not be granted to compel the Board of
Appeal of the Department of Mental Health to hear and determine appeals taken from the
decisions of the Commissioner even though they had been appointed to do so sixty-five
days previously and had not acted in a single case. "Here the petition does not seek to
compel performance by the respondents of any particular specified official act or acts which
they are now neglecting or refusing to perform. Rather it seeks to have this court institute
a general investigation of the entire past official conduct of the two respondents over
'COLUMBIA LAW REVIEW [Vol. a8
restraint where a question of internal administration is at issue. This is

particularly true in the civil service cases which deal with examinations 0 1
and with appointment and removal of government employees.
The Administrative Procedure Act' 0 2 recognized that there was a
distinctive aspect to this kind of relief but dealt with it'under the heading of
"Scope of Review." Section 10(e) provides, inter alia, that a reviewing
court shall "compel agency action unlawfully withheld or unreasonably
delayed."' 1 3 Not many cases are specifically addressed to this provision,
largely, it seems, because of the context in which it appears. Clarification by
a separate provision in such statutes to deal with the nature and types of re-
lief, as distinct from the extent to which a court will substitute its judgment
on questions of law or fact for that of the agency, would seem desirable.
IV. RESTRAINING ENFORCEMENT OF THREATENED ACTION
Up to this point we have dealt with relief in actual controversies be-

t~reen an agency and an individual. The need for relief, however, may some-
times arise before the agency acts against any specific individual.
New persons may come within the orbit of the agency jurisdiction who
an indefinite period of time, to classify whatever they have done as legal or illegal, to 'set
aside all illegal action,' to order them generally in the future to perform their duties and to
determine whether they have earned their pay." Id. at 600-01, 109 N.E.2d at 645. See
also People ex rel. Bartlett v. Dunne, 219 II1. 346, 76 N.E. 570 (1906) (mandamus will not
lie to compel the Mayor of Chicago to enforce an ordinance requiring saloons to close on the
Sabbath); Walsh v. La Guardia, 269 N.Y. 437, 199 N.E. 652 (1936) (mandamus will not
lie to compel mayor and police commissioner to stop operation of twenty-seven bus lines
alleged to operate without franchises). In Dorris v. Lloyd, 375 Pa. 474, 100 A.2d 924 (1953),
mandamus was denied to a county chairman of the Democratic Party who sought to compel
the County Board of Elections to enforce its statutory duties of inspection and investigation
of primary elections. To grant mandamus, the court said, "would be to make the court a
continuing supervisor of not only the good faith but also the ability with which they will
hereafter perform the duties of their office. . . . That, of course, is not the proper function
of mandamus." Id. at 479, 100 A.2d at 927. In the following year, however, the same court
held that mandamus would lie to compel the Secretary of the Department of Labor to
enforce a statute requiring installation of sanitary facilities for railroad employees, without
even referring to the problem of continuing supervision. Brotherhood of Railroad Trainmen
v. Walker, 377 Pa. 396, 105 A.2d 363 (1954). The court, apparently, was carried away with
its enthusiasm for plumbing. "Nothing can be more conducive to an enlightened civilization
than an effective system of sanitation, drainage and lavtiation [sic] which cleanses, scours
and purifies, driving contagion into the limbo of incineration and contamination into the
distant reaches of the sea. The body of the modern State can not healthily survive unless
it is vitalized with the arteries of sanitary plumbing. Soap and water are the most formidable
enemies of pestilence and disease." Id. at 399, 105 A.2d at 365.
101. In Mitchell v. McKevitt, 128 Cal. App. 458, 17 P.2d 789 (1932), a California
court refused to issue a writ of mandate to compel the Civil Service Commission to change
answers on an examination whereby plaintiff would be entitled to a higher rating. Quoting
from'People ex rel. Caridi v. Creelman, 150 App. Div. 746, 135 N.Y. Supp. 718 (1st Dep't
1912), the court said: "The court can neither conduct nor supervise civil service examina-
tions . . . ." 128 Cal. App. at 463, 17 P.2d at 791. "The complexities of modern civic life
demand that such problems should be determined by the boards and commissions desig-
nated by law for that purpose, and the policy of our laws is to allow this to be done with as
little interference as is reasonably possible . . . ." Id. at 465, 17 P.2d at 791. For additional
reference to this subject see GELLHORN & BysE, ADMINISTRATIVE LAW 411 n.59 (1954).
102. 60 STAT. 237 (1946), 5 U.S.C. §§ 1001-11 (1952).
103. 60 STAT. 243 (1946), 5 U.S.C. § 1009(e) (1952).
19581 JUDICIAL RELIEF FROM ADMINISTRATIVE ACTION 17
are doubtful of its applicability to them. This situation ordinarily arises

where licensing is required. Also statutory changes or changes in agency
policy may require acts of compliance or restrict the previously acceptable
acts of those already subject to the agency's jurisdiction. If failure to com-
ply invites sanctions, judicial relief may be sought to restrain enforcement.
The relief may be either injunctive or declaratory depending upon the
immediacy of the impact of the action and the threatened sanctions. Al-
though generally demand for both kinds of relief is made, several considera-
tions applicable primarily to declaratory relief are dealt with in the follow-
ing section.10 4
Acts of compliance are most frequently required by agency rules re-
flecting a change in policy. 08 However, a statute may do the same thing,
as was the case under the Hatch Act restricting political activities of civil
service employees. 08 This was also the effect, in the noted Steel Seizure
Case,0 7 of an executive order authorizing the Secretary of Commerce to take
possession of the nation's steel mills. Finally, compliance may also be re-
quired by a direct notification from the agency.0 8 In each of these instances
injunctive relief was sought to avoid compliance and to restrain enforce-
ment of threatened sanctions. What factors do the courts consider in grant-
ing such relief?
The agency action is ordinarily challenged on one or both of the follow-
ing grounds: (1) that it is invalid, or (2) that it is inapplicable to the chal-
lenger. Since no actual controversy exists at the time, he, in turn, may be
confronted with the arguments (1) that the challenge is premature and
therefore not justiciable, and (2) that he has not exhausted his administra-
tive remedies.
Of the two grounds for relief, invalidity and inapplicability, less diffi-
culty seems to be encountered in obtaining relief in cases where the agency
action is claimed to be invalid. Thus, in FCC v. American Broadcasting
Co.,'0 9 the Supreme Court enjoined the enforcement of an FCC rule barring
"give-away" TV and radio programs. The Commission had found that
such programs violated the lottery laws, but the Court held that this inter-
pretation "would be stretching the statute to the breaking point" 10 and
that "the Commission has overstepped the boundaries of interpretation
104. See text at notes 121-38 infra.
105. The chain broadcasting regulations of the FCC, considered in Columbia Broad-
casting System, Inc. v. United States, 316 U.S. 407 (1942), imposing restrictions on the
contracts made between radio stations and their affiliates, are a well-known example.
106. United Pub. Workers, CIO v. Mitchell, 330 U.S. 75 (1947).
107. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
108. Friend v. Lee, 221 F.2d 96 (D.C. Cir. 1955);'Shanks Village Comm. v. Cary,
197 F.2d 212 (2d Cir. 1952).
109. 347 U.S. 284 (1954).
110. Id. at 294.
COLUMBIA LAW REVIEW (Vol. 58
and hence has exceeded its rule-making power.""' Similarly, the United
States Court of Appeals for the Ninth Circuit held invalid and restrained
enforcement of Coast Guard rules of procedure for screening seamen as
security risks since no hearings were provided for, in violation of procedural
due process." 2 The same result was reached in a case where the Alcohol
and Tobacco Tax Division had issued a rule applicable to the labelling of
liquor which discriminated against certain classes of manufacturers. 1 3
In these cases the courts did not find difficulty with the fact that a
rule was being challenged as distinct from a final order. Since the Supreme
Court's decision in Columbia Broadcasting System, Inc. v. United States,'"
it has been accepted that in certain circumstances a rule can have such an
immediate impact on those affected as to present a justiciable issue and
warrant injunctive relief.
The cases involving coverage questions, however, continue to raise the
issue in its earlier form, i.e., whether a rule is a "final order." In FPC v.
Union ProducingCo.,"' certain gas companies sought to enjoin enforcement
of an FPC rule requiring "natural gas companies" to file rate schedules and
to apply for certificates of convenience and necessity. They claimed that
they were not natural gas companies as defined in the Natural Gas Act. In
denying the relief the court distinguished the CBS case as follows: "The
relief asked by CBS was not the securing of a determination as to whether
or not certain transactions (and CBS as a participant) were within the terms
of the Federal Communications Commission regulations. CBS wanted a
court ruling that the regulations in their entirety were outside the agency's
statutory authority.""' The court, refusing to consider whether threatened
irreparable injury warranted injunctive relief at that time, held that the
Natural Gas Act provided for agency declaratory relief which the plaintiff
had failed to seek, and that plaintiff had therefore not exhausted his admin-
istrative remedies.
It is difficult to reconcile this decision with that of the Supreme Court
in Frozen Food Express v. United States,"7 where it was held that an ICC
rule, defining "agricultural" commodities for purposes of determining
111. Id. at 296.

112. Parker v. Leiter, 227 F.2d 708 (9th Cir. 1955).
113. Continental Distilling Corp. v. Humphrey, 220 F.2d 367 (D.C. Cir. 1954).
114. 316 U.S. 407 (1942).
115. 230 F.2d 36 (D.C. Cir.), cert. denied, 351 U.S. 927 (1956).
116. Id. at 39. In Magnolia Petroleum Co. v. FPC, 236 F.2d 785 (Sth Cir. 1956),
cert. denied, 352 U.S. 968 (1957), the same relief was sought by a petition for review under
the Natural Gas Act and the Administrative Procedure Act. The court, however, held that
the challenged rule was not "an order" under the Natural Gas Act and that the relief was
unavailable. It noted, however, that the question of injunctive relief remained open and
that the cases on that subject were in conflict.
117. 351 U.S. 40 (1956).
whether or not trucking companies must apply for certificates of convenience

and necessity, was a final order subject to injunctive relief." 8
The main issue in these cases, be the claim invalidity or inapplicability,
is not whether a "rule" is an "order." The essential issue is the justiciability
of agency action as determined by the nature of its impact on the person
challenging it. Here the facts in each case are determinative. As Mr.
Justice Douglas said, for the Court, in Frozen Food Express v. United
States:
The determination by the Commission that a commodity is not an
exempt agricultural product has an immediate and practical impact
on carriers who are transporting the commodities, and on shippers
as well. . . .The "order" of the Commission which classifies com-
modities as exempt or nonexempt is, indeed, the basis for carriers
in ordering and arranging their affairs. . . . Carriers who are
without the appropriate certificate or permit, because they believe
they carry exempt commodities, run civil and criminal risks ...
The "order" of the Commission is in substance a "declaratory"
one . . .which touches vital interests of carriers and shippers alike
and sets the standard for shaping the manner in which an important
segment of the trucking business will be done. . . .We conclude
that the issues raised in the complaint are justiciable. ....119
Finally, does the availability of administrative declaratory relief in
these cases require resort to the agency before judicial relief is sought?
Generally, the exhaustion rule is applicable here as in other cases, but there
appears to be no reason why the rule may not be circumvented where
irreparable injury is shown and there is no overriding public interest, as
in the case of judicial intervention in pending administrative action. As the
court said in Parkerv. Lester:
When the nature of the plaintiff's action is considered, it is
apparent that no rule relating to prior exhaustion of administrative
remedies can deprive the court of authority to pass upon the
issues here present.
....Although the employment of which plaintiffs were de-

prived was prospective only, yet their right to earn a livelihood...
was one entitled to protection at the hands of a court of equity ....
We perceive no reason why the court below must stay its
hand until the plaintiffs have20 completed the so-called appeals
authorized by the regulations.
118. See also Amshoff v. United States, 228 F.2d 261 (7th Cir. 1955), where it was held
that a regulation of the Secretary of Agriculture under the Packers and Stockyards Act
requiring "Packers-Buyers" to register as dealers under the act was reviewable as a "final
order" under the Hobbs Act. 64 STAT. 1129 (1950), 5 U.S.C. §§ 1031-42 (1952), as amended,
5 U.S.C. §§ 1031(d), 1032 (Supp. IV, 1957).
119. 351 U.S. 40, 43-45 (1956).
120. 227 F.2d 708, 713-14 (9th Cir. 1955).
V. DECLARATORY RELIEF
About twenty-five years ago the declaratory judgment was introduced

into administrative law to extricate it from the "procedural bog" of the
traditional remedies. 12 ' Unfortunately the extrication did not materialize,
122
and we are still in the bog.
At best this new remedy has served to fill in several gaps where, for
one reason or another, the existing remedies appeared to be unsatisfactory.
Thus, the federal courts have utilized it as a method of reviewing deporta-
tion and exclusion orders.12 3 In the context of the present discussion the
relief thus provided is appellate in nature, since it constitutes a review of
final adjudicative action on the merits. However, a number of states have
also used the declaratory judgment as a method of judicial intervention
in pending administrative proceedings. 124
The question whether, from a functional standpoint, the declaratory
judgment has also provided us with a type of relief not identifiable with
any of the other remedies should be considered. It is a commonplace today
to insert a demand for such relief in actions against administrative agencies:
cases are brought to "declare invalid and enjoin the enforcement of" an
agency regulation, 121 or to "declare" a rule or other agency action' invalid or
inapplicable and to "compel" the issuance of a permit. 12 In these circum-
stances the so-called declaratory relief serves no independent purpose. If
the action were one simply to enjoin or to compel, the court would still
have to "declare" that the rule or other action was valid or invalid, ap-
plicable or inapplicable, legal or illegal. There are circumstances in adminis-
trative law, however, where the "pacifying ministrations" of declaratory
relief can stand on their own feet. For instance, a person may be doubtful
whether'or not he must apply to an agency for a license to conduct a busi-
ness. If no declaratory administrative procedure is available, he must
121. Borchard, Declaratory Judgments in Administrative Law, 11 N.Y.U.L. REv. 139
(1933).
122. The Supreme Court "relegates the declaratory judgment to a low estate . 2
Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 253 (1952) (Douglas, J., dissenting).
See also Public Utilities Comm'n v. United Air Lines, 346 U.S. 402 (1953).
123. Brownell v. Tom We Shung, 352 U.S. 180 (1956); Shaughnessy v. Pedreiro, 349
U.S. 48 (1955). Formerly the only remedy had been a habeas corpus proceeding after
arrest. Heikkila v. Barber, 345 U.S. 229 (1953).
124. New York Post Corp. v. Kelley, 296 N.Y. 178, 71 N.E.2d 456 (1947). The court
in that case intervened in a pending labor representation proceeding on the ground that the
agency was without jurisdiction. This method has also been used in this way in a number
of instances involving the determination of the applicability of certain taxes. Iroquois
Post No. 229, Am. Legion v. Louisville, 279 S.W.2d 13 (Ky. 1955); Madden v. State Tax
Comm'n, 333 Mass. 734, 113 N.E.2d 252 (1956); Meenes v. Goldberg, 331 Mass. 688,1
122 N.E.2d 356 (1954); Dun & Bradstreet, Inc. v. City of New York, 276 N.Y. 198, 11
N.E.2d 728 (1937); American Life & Acc. Ins. Co. v. Jones, 152 Ohio St. 287, 89 N.E.2d
301 (1949).
125. FTC v. B. F. Goodrich Co., 242 F.2d 31, 35 (D.C. Cir. 1957).
126. Robeson v. Dulles, 235 F.2d 810 (D.C. Cir. 1956).
either comply against what he believes to be his own best interests or defy
apparent agency authority and expose himself to sanctions.
Such a problem arose in Public Serv. Comm'n v. Wycoff Co., 1 although
its resolution was left in doubt because the case also involved a federal-state
conflict. A film distributor had been denied a Public Service Commission
certificate to transport film between certain points within the state of Utah.
The denial was sustained by the Supreme Court of Utah. He then instituted
action for a declaratory judgment in a federal court claiming that his trans-
portation of film was in interstate commerce and that the state agency had
no jurisdiction over it since he had authorization from the Interstate Com-
merce Commission. In denying him this relief, Mr. Justice Jackson, for the
Court, said:
Even when there is no incipient federal-state conflict, the
declaratory judgment procedure will not be used to pre-empt and
prejudge issues that are committed for initial decision to an admin-
istrative body or special tribunal any more than it will be used as
a substitute for statutory methods of review.
We conclude that this suit cannot be entertained as one for in-

junction and
12 8
should not be continued as one for a declaratory
judgment.
In several states however, declaratory relief has been found warranted

where the necessity for compliance was at issue. In New York Foreign Trade
Zone Operators, Inc. v. State Liquor Authority, 129 the New York Court of
Appeals held that liquor importers could properly bring a declaratory judg-
ment proceeding against the State Liquor Authority to determine whether
the agency had power to require that they obtain a distiller's license. Like-
wise, a firm of New Jersey optometrists successfully challenged the constitu-
tionality of a statute regulating the practice of optometry in a declaratory
judgment proceeding against the New Jersey Board of Optometrists." 3 The
same relief is sometimes available where the doubtful question is one of
status."'
127. 344 U.S. 237 (1952).

128. Id. at 246, 249. See also Public Util. Comm'n v. United Air Lines, 346 U.S. 402
(1953).
129. 285 N.Y. 272, 34 N.E.2d 316 (1941).
130. Abelson's Inc. v. New Jersey State Bd. of Optometrists, 5 N.J. 412, 75 A.2d 867
(1950). The court noted that under the declaratory judgment act 'fthe validity and con-
struction of a statute and rights, status or other legal relations thereunder are proper
subjects of inquiry . . . . There is no enlargement of jurisdiction over subject matter and
parties. But there is provision for declaratory relief not obtainable under the pre-existing
practice and procedure. The remedy is available in certain cases where no other action
would lie. . . ." Id. at 416-17, 75 A.2d at 869.
131. See McGrath v. Kristensen, 340 U.S. 162, 169 (1950) (eligibility for citizenship);
Perkins v. Elg, 99 F.2d 408 (D.C. Cir. 1938), modified, 307 U.S. 325 (1939) (citizenship
status).
As in the cases where the relief sought is restraint against enforcement

of threatened action, the issue here is generally the validity or applicability
of an agency rule to a particular party. It does not necessarily follow, how-
ever, that every rule should be subject to judicial review at any time. It is
only where the rule creates a situation where a person is precluded from
initiating or carrying on a legal activity on pain of agency censure that
judicial relief is called for. In other words, there must be a justiciable issue.
Certainly, under the "case or controversy" provision of the Federal Consti-
tution, this is required.1 2 Yet a number of state statutes provide that
declaratory relief may be had against any agency ruling. The latest of these,
enacted in Massachusetts in 1954, provides as follows:
Judicial Review of Regulations. Unless an exclusive mode of
review is provided by law, judicial review of any regulation may be
had through petition for declaratory relief in the manner and to the
extent provided under chapter two hundred and thirty-one A. 3
However, in the federal jurisdiction neither the Administrative Pro-

cedure Act' nor the current reform proposals by the Hoover Commission,' 5
its Task Force,' 36 and the American Bar Association's Special Committee on
Legal Services and Procedure,' suggest any such unlimited relief from
administrative rule making. And properly so. Until a situation arises
which meets the standards of justiciability, there is no purpose to be served
by having a blanket provision exposing every agency rule to judicial re-
138
view.
VI. CONCLUSION
Functional classification of the types of judicial relief from administra-
tive action can assist in achieving various ends. It provides a simple and
practical basis upon which lawyers and the courts may be able to ascertain
the nature and limits of judicial relief available against administrative action.
132. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).
133. 1 MAss. ANN. LAWS c. 30A, § 7 (Supp. 1956). See also MODEL STATE ADMIN-
ISTRATIVE PROCEDURE ACT § 6.
134. 60 STAT. 237 (1946), as amended, 5 U.S.C. §§ 1001-11 (1952), as amended, 5
U.S.C. § 1010 (Supp. IV, 1957).
135. COMMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT,
LEGAL SERVICES AND PROCEDURE, A REPORT TO CONGRESS (1955).
136. COMMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT,
TASK FORCE REPORT, REPORT ON LEGAL SERVICES AND PROCEDURE (1955).
137. AMERICAN BAR ASSOCIATION SPECIAL COMMITTEE ON LEGAL SERVICES AND
PROCEDURE, REPORT (1956).
138. Finally, something should be said about the effect of provisions for declaratory
relief made available within the administrative process itself. Should this preclude resort
to judicial declaratory relief? In other words must the administrative remedies be exhausted?
In FPC v. Union Producing Co., 230 F.2d 36 (D.C. Cir.), cert. denied, 351 U.S. 927 (1956),
the court appears to hold that they must. But as indicated in the preceding section and in
the discussion on intervention in pending proceedings, if irreparable injury is shown then
administrative remedies need not be exhausted.
It may bring to an end continued dependence on the traditional remedies,

the substitution for them of simple statutory methods having left unfilled
the role the writs played in indicating the types of relief that were available.
Further, functional classification exposes for'direct consideration the critical
problems formerly obscured by the concepts surrounding the traditional
remedies. Instead of struggling with the questions of what is or is not
"judicial," "quasi-judicial," "legislative," "administrative," "discretion-
ary," "ministerial," or "jurisdictional," we can deal with the underlying
and more basic problems. Thus where a court is asked to intervene in pend-
ing proceedings, it is apparent that it must deal with a basic adjustment of
the respective roles of the agency and the court. Where it is relief against
threatened action that is sought, the underlying issue is that of prematurity.
If it is completed action that is to be reviewed, the main issue is the extent
to which the court will interfere with the judgment of the agency. Com-
pelling the initiation of action borders on judicial supervision of the ad-
ministrative process.
If a useful classification has been presented, should anything inore be
done about it? It is, of course, possible and desirable to incorporate the
types of relief in the various statutes simply by naming them. It should be
obvious, however, that such a statutory classification, since it is based on
underlying data that cannot be set forth in a statute, will not completely
avoid the problems.
Finally, the types of relief must not be placed in unyielding categories;
it often occurs that a court must improvise relief which a particular case
warrants, and the courts should continue to be able to do so.

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TYPES OF JUDICIAL RELIEF FROM ADMINISTRATIVE

A significant but neglected aspect of litigation between private parties

tional remedies for this information, thereby becoming entangled in their

I. APPELLATE REVIEW OF FINAL DECISIONS

2. Thus, it is common practice in the jurisdictions that have presumably abolished

-particularly with respect to review of adjudicative determinations based

cedures as well as broader standards should be employed by the reviewing

27. 64 STAT. 1130 (1950), 42 U.S.C. § 2239 (1952).

seems clearly erroneous. In the mandamus cases, as we have seen, it is a

to exercise an essentially administrative function."4 Nevertheless, the

Essentially different from appellate relief is judicial intervention in

46. Id. at 21.

A. Legality of Agency Action

51. See DAvis, ADMINISTRATIVE LAW 614 (1951).

that compliance with the procedural requirements of the fifth amendment

the agency, 4 defamatory action such as listing a group as a subversive

C. PrivateInjury and Public Interest

III. COMPELLING INITIATION OF AGENCY ACTION

The situation is somewhat different when one seeks to compel an agency

restraint where a question of internal administration is at issue. This is

IV. RESTRAINING ENFORCEMENT OF THREATENED ACTION

Up to this point we have dealt with relief in actual controversies be-

are doubtful of its applicability to them. This situation ordinarily arises

111. Id. at 296.

whether or not trucking companies must apply for certificates of convenience

....Although the employment of which plaintiffs were de-

About twenty-five years ago the declaratory judgment was introduced

We conclude that this suit cannot be entertained as one for in-

In several states however, declaratory relief has been found warranted

127. 344 U.S. 237 (1952).

As in the cases where the relief sought is restraint against enforcement

However, in the federal jurisdiction neither the Administrative Pro-

It may bring to an end continued dependence on the traditional remedies,

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