Administrative Law

Judicial Review

IntroductionConstitutionally valid

statute authorizes agency action.

Agencies gather information to make decisions

Agency decisions can be formal or informal,

legislative or judicial

Decisions are then enforced by the agency

Decisions and enforcement activities are reviewed by

courts

Defining Judicial Review Judicial review – the process whereby

courts exercise control over the findings of fact and interpretations of law by governmental agencies. Judicial review is not found in the Constitution Articulated by the Court in Marbury v. Madison Judicial review allows courts to:

Determine the meaning of legislation Invalidate statutes that are deemed

unconstitutional

Defining Judicial Review Judicial Review and Administrative Actions

Judicial review is generally authorized by the guiding statute of the agency.

Section 702 of the Administrative Procedure Act also provides for judicial review of federal administrative actions:

“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action with the meaning of a relevant statute is entitled to judicial review thereof.”

But, section 701(a) states that judicial review is not applicable to:

Statutes that preclude judicial review Agency actions committed by law to agency discretion

Defining Judicial Review Judicial Review as Guidance for Administrators

We know that administrative decisions must be grounded in: The Constitution The guiding statute The Administrative Procedure Act

Statutes and the Constitution tend to be vague There are not strict rules and guidelines for dealing with

every issue, controversy, policy or situation which administrators may encounter.

Judicial review creates another source of guidance as courts establish precedents that can help agencies justify their decisions.

Agencies will adopt these decisions in their decision making and procedures.

Defining Judicial Review Judicial Review as a Check on

Administrators Judicial review allows parties to challenge:

Rulemaking actions Adjudicatory decisions Whether an agency has exceeded its statutory

authority Whether a guiding statute violates the Constitution Whether an agency action violates due process

considerations Abuses of administrative discretion

Two Major Aspects of Judicial Review Access to judicial review

Justiciability – whether a case is suitable for judicial consideration. Ripeness Standing Mootness Exhaustion of administrative remedies Collusive suits Primary jurisdiction

The scope of judicial review Judicial deference toward administrative discretion:

Vermont Yankee Chevron v. Natural Resource Defense Council

Major questions: How much deference should courts give to an agency’s interpretation of its own statutory authority? When an agency, either in rulemaking or adjudication, finds certain facts and incorporates them into its decisions, how

willingly should judges dispute the facts the agency found? How freely should judges substitute their own interpretation of the facts for the agency’s interpretation? How aggressively should courts force agencies to give detailed factual justifications for their decisions?

Discussion Original view

Administrators were desired for their expertise. Courts are not experts in policy areas. Courts should thus be deferential to administrative agencies.

New view Many have moved away from the view of deference because of:

Agency capture Inconsistent views of the goals of the agency Discretion can be used in an arbitrary and capricious manner

Thus, courts should act as a greater check on administrative agencies.

Access to Judicial Review Article III, Section 2:

Gives the power to the federal judiciary jurisdiction to resolve all cases and controversies that arise under federal law and the federal Constitution.

The first bolded term implies that there must be a legal case.

The second implies the “requirement of adversariness.”

Questions arise over whether a suit contains a case or controversy that can be adjudicated by the courts.

Access to Judicial Review: Ripeness

Cases that are brought too early are thought to not be “ripe.”

Example: United Public Workers v. Mitchell (1947)

But when exactly is a case ripe? “What if a person or corporation or government agency has

made a decision that will affect others when it is implemented, but has not yet begun to implement it?”

“Should courts wait until the harm has occurred before deeming the case adversarial, or should they intervene to examine whether the harm is legally permissible before it happens?”

A weaker standard for ripeness increases the power of judicial review and a stronger standard for ripeness decreases the power of judicial review.

Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136 (1967)

Access to Judicial Review: Standing

In order to demonstrate standing, parties must show: Injury in fact – an actual invasion or abridgement of a

person’s legal rights. This is not limited to economic harm, but non-economic grounds are

harder to establish. Individualized harm – an injury, loss, or impairment that

directly affects a person. Disagreement with an agency policy is not enough. This is hard for many public interest groups to establish (particularly

environmental) as there is not direct harm to the members. Cannot sue on behalf of others.

Causation Must show that the other party caused the harm.

Ability to offer a remedy The party must show that the Court can offer a remedy

Association of Data Processing Service Organizations, Inc. v. Camp,

397 U.S. 150 (1970)

United States v. Students Challenging Regulatory Agency Procedures, 412

U.S. 669 (1973)

Access to Judicial Review: Mootness

Moot – lacking in practical significance. Courts will not decide cases in which a

controversy no longer exists. Article III requires a case or controversy and if

a case or controversy no longer exists, then the Court cannot decide anything.

Not all state constitutions have this requirement. DeFunis v. Odegaard (1974) Roe v. Wade (1973)

Access to Judicial Review: Exhaustion of Administrative Remedies

This is simply the idea that before a party can seek relief from a court, the party must first pursue any available administrative remedies.

The idea is that the agency should have the opportunity to correct its own errors before the courts.

This exhaustion of remedies: Prevents judicial review that is premature or

unnecessary Protects agency autonomy Promotes efficiency and economy

Access to Judicial Review: Primary Jurisdiction

Primary jurisdiction doctrine – where a matter presented to a court in an independent lawsuit falls within the jurisdiction of an administrative agency, the court, as a matter of comity (courtesy), should defer ruling on the issue until the agency has had an opportunity to resolve it.

The Scope of Judicial Review How aggressive should courts be in reviewing the decisions of agencies?

Aggression could be defined to ways: The willingness to review an agency decision. The willingness to defer to the judgment of the agency.

The debate raises arguments on two sides: Increased scope of review

Fairness Courts must review the actions of agencies in order to ensure that persons are not denied due process or

treated arbitrarily or capriciously. This also ensures that courts correct the errors of agencies and act as a check on administrative agencies.

Make sure agencies conform to: Constitutional requirements Statutory authority and limitations Due process requirements

Decreased scope of review (deference) Efficiency

There are simply too many cases coming out of agencies for courts to review. Expertise

Courts do not possess expertise and agencies do. Thus, courts should not be reviewing the decisions of agencies.

Democracy Courts should not substitute their judgment for that of an agency empowered by a popularly elected

legislature. Notice that Chevron gave increased deference to administrative agencies. Also note that courts review agency actions with a presumption of correctness.

Thus challengers carry the burden of proving that the agency’s action(s) are incorrect.

Agency Action Committed to Judicial Discretion

Recall that Section 702 of the Administrative Procedure Act says: “A person suffering legal wrong because of

agency action, or adversely affected or aggrieved by agency action with the meaning of a relevant statute is entitled to judicial review thereof.”

But, section 701(a) states that judicial review is not applicable to: Statutes that preclude judicial review Agency actions committed by law to agency

discretion

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)

The Hard Look Doctrine This case emphasizes what is called the “hard look doctrine”.

Motor Vehicle Manufacturer’s Association v. State Farm Insurance (463 U.S. 29, 1983)

Here the courts take a hard look at the agency’s actions and ensure that there is a reasoned basis for their decisions.

It ensures that agencies take a hard look at the basis for their decisions and courts can strike down decisions that are arbitrary and capricious.

Hard look doctrine leads to: Increase in the number of reversals and remands of agency actions.

Options in decisions: Uphold Remand – invalidated, but agency is given a chance to redo the rule/procedure Reverse – change the rule, but leave it in place

Change part of the rule New standard Substitute own judgment

Judicialization of policymaking (Kenneth Culp Davis) More adjudication More informal procedures

Informal rulemaking Negotiated rulemaking

Heckler v. Chaney, 470 U.S. 821 (1985)

Reviewing Questions of Fact and Questions of Law

Introduction Here we discuss judicial review as a matter of

deference to agency determinations. In this type of judicial review, Courts accord a…

Presumption of correctness – a legal assumption that action taken by a trial court or administrative agency is clothed with an inference of being correct.

Deference in this regard is broken down into two categories by Section 706(2) of the Administrative Procedure Act:

Review of Questions of Law (A – D) Review of Questions of Fact (E and F)

Deference to Findings of Fact The Administrative Procedure Act

Section 706(2)(e) of the APA states that reviewing courts shall set aside agency actions, findings, and conclusions that are not supported by substantial evidence.

The APA sets three standards for judicial review of findings of fact. Agency decisions may be set aside when agency findings and

conclusions are found to be: Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with the law; Unsupported by substantial evidence (in certain types of cases); or Unwarranted by the facts to the extent that the facts are subject to trial de

novo by the reviewing court. “Substantial evidence is relevant evidence which a reasonable mind

might accept in support of the conclusions of the agency” Two Types of Deference to Findings of Fact

Standards of admissibility Weighing the evidence

Universal Camera Corporation v. National Labor Relations Board, 340

U.S. 474 (1951)

National Labor Relations Board v. Hearst Publications, Inc., 322 U.S.

111 (1944)