PRIA, Government Policy, Made Personal

Summary

Most actions under sections 1323 or 4713, and any steps an agency takes to carry them out, cannot be reviewed by other agencies, the Government Accountability Office, or federal courts, except as described below and in Chapter 71. A person who gets an exclusion or removal order under 1323(c)(6) or a covered procurement action under 4713 has 60 days from the notice to ask the U.S. Court of Appeals for the D.C. Circuit to review it. The D.C. Circuit is the only court that can hear those challenges, and the Supreme Court may review after that. The court can overturn the action if it is arbitrary or an abuse of discretion, violates the Constitution, exceeds legal authority, is not supported by the evidence, or did not follow required procedures. The government must give the court the information it used to make the decision. Unclassified, non‑privileged material is shared with the petitioner with protections for trade secrets and confidential business data. Classified, sensitive security information, privileged law‑enforcement material, certain FISA‑derived intelligence, and other protected information are shown only to the court in secret and kept under seal. After all review ends, the court returns the record to the government. A court decision under this process is the only judicial remedy for these claims against the United States and its agencies. "Classified information" means what the Classified Information Procedures Act defines, and includes national‑security information and restricted data under the Atomic Energy Act.

Title 41, §1327

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(a)In General.—

Except as provided in subsection (b) and chapter 71 of this title, and notwithstanding any other provision of law, an action taken under section 1323 or 4713 of this title, or any action taken by an executive agency to implement such an action, shall not be subject to administrative review or judicial review, including bid protests before the Government Accountability Office or in any Federal court.

(b)Petitions.—

(1)In general.—

Not later than 60 days after a party is notified of an exclusion or removal order under section 1323(c)(6) of this title or a covered procurement action under section 4713 of this title, the party may file a petition for judicial review in the United States Court of Appeals for the District of Columbia Circuit claiming that the issuance of the exclusion or removal order or covered procurement action is unlawful.

(2)Standard of review.—

The Court shall hold unlawful a covered action taken under section 1323 or 4713 of this title, in response to a petition that the court finds to be—

(A)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B)contrary to constitutional right, power, privilege, or immunity;

(C)in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;

(D)lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (3); or

(E)not in accord with procedures required by law.

(3)Exclusive jurisdiction.—

The United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction over claims arising under section 1323(c)(5) or 4713 of this title against the United States, any United States department or agency, or any component or official of any such department or agency, subject to review by the Supreme Court of the United States under section 1254 of title 28.

(4)Administrative record and procedures.—

(A)In general.—

The procedures described in this paragraph shall apply to the review of a petition under this section.

(B)Administrative record.—

(i)Filing of record.—

The United States shall file with the court an administrative record, which shall consist of the information that the appropriate official relied upon in issuing an exclusion or removal order under section 1323(c)(5) or a covered procurement action under section 4713 of this title.

(ii)Unclassified, nonprivileged information.—

All unclassified information contained in the administrative record that is not otherwise privileged or subject to statutory protections shall be provided to the petitioner with appropriate protections for any privileged or confidential trade secrets and commercial or financial information.

(iii)In camera and ex parte.—

The following information may be included in the administrative record and shall be submitted only to the court ex parte and in camera:

(I)Classified information.

(II)Sensitive security information, as defined by section 1520.5 of title 49, Code of Federal Regulations.

(III)Privileged law enforcement information.

(IV)Information obtained or derived from any activity authorized under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), except that, with respect to such information, subsections (c), (e), (f), (g), and (h) of section 106 (50 U.S.C. 1806), subsections (d), (f), (g), (h), and (i) of section 305 (50 U.S.C. 1825), subsections (c), (e), (f), (g), and (h) of section 405 (50 U.S.C. 1845), and section 706 (50 U.S.C. 1881e) of that Act shall not apply.

(V)Information subject to privilege or protections under any other provision of law.

(iv)Under seal.—

Any information that is part of the administrative record filed ex parte and in camera under clause (iii), or cited by the court in any decision, shall be treated by the court consistent with the provisions of this subparagraph and shall remain under seal and preserved in the records of the court to be made available consistent with the above provisions in the event of further proceedings. In no event shall such information be released to the petitioner or as part of the public record.

(v)Return.—

After the expiration of the time to seek further review, or the conclusion of further proceedings, the court shall return the administrative record, including any and all copies, to the United States.

(C)Exclusive remedy.—

A determination by the court under this subsection shall be the exclusive judicial remedy for any claim described in this section against the United States, any United States department or agency, or any component or official of any such department or agency.

(D)Rule of construction.—

Nothing in this section shall be construed as limiting, superseding, or preventing the invocation of, any privileges or defenses that are otherwise available at law or in equity to protect against the disclosure of information.

(c)Definition.—

In this section, the term “classified information”—

(1)has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.); and

(2)includes—

(A)any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation to require protection against unauthorized disclosure for reasons of national security; and

(B)any restricted data, as defined in section 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014).

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Foreign Intelligence Surveillance Act of 1978, referred to in subsec. (b)(4)(B)(iii)(IV), is Pub. L. 95–511, Oct. 25, 1978, 92 Stat. 1783, which is classified principally to chapter 36 (§ 1801 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see

Short Title

note set out under section 1801 of Title 50 and Tables. The Classified Information Procedures Act, referred to in subsec. (c)(1), is Pub. L. 96–456, Oct. 15, 1980, 94 Stat. 2025, which is set out in the Appendix to Title 18, Crimes and Criminal Procedure.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 90 days after Dec. 21, 2018, and applicable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title. Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title.

§1327 Judicial Review Procedures