Jenny Schieber, et al. v. United States

This petition presents two crucial and as yet unresolved questions regarding the availability of judicial review under the Administrative Procedure Act (“APA”) of agency adjudication rendered pursuant to international executive agreements. In the decision from which certiorari review is sought, the D.C. Circuit held in a case of first impression that final agency decisions issued under an executive agreement are immune from judicial review in the absence of congressional legislation setting forth substantive evaluative criteria, because they are deemed ipso facto to have been “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This is what Petitioners have dubbed the “substantive statute” test. The lower court also held, alternatively, that judicial review of adjudicative action under an international executive agreement containing a governmentto-government dispute resolution clause is precluded on the grounds that such an agreement is a “statute” that “preclude[s] judicial review.” 5 U.S.C. § 701(a)(1). The questions presented by this petition therefore are: 1. Whether agency adjudication rendered pursuant to an international executive agreement is subject to judicial review under the APA where: (a) Congress has granted the agency general authority to act; (b) the authorizing statute lacks substantive criteria by which to measure agency action; (c) the executive agreement sets forth such criteria; and (d) the agency has adopted detailed procedures for adjudicating claims by individuals, incorporating such evaluative criteria.