Judicial Review of Administrative Action

May 18, 2005

MAJOR THEMES:

1. Legal experts’ review of non-legal experts

2. Agency responses to the existence and scope of judicial review

3. Separation of powers: balance of powers among all branches of government

I. INTRODUCTION

A. Essentials--federal system and tripartite structure

B. Theories

1. Judicial independence

Issue of “tunnel vision”: “Tunnel vision, a classic administrative disease, arises when an agency… effectively carries a single-minded pursuit of a single goal too far, to the point where it brings about more harm than good…”

Issue of “agency capture”: “A criticism of agency delegation… which maintains that agencies become servants of the entities that they are supposed to regulate.”

2. Judicial limitations

(a) Separation of powers

(b) Political checks

C. Classic forms of judicial review (other variants follow later on)

1. Suit in district court under Administrative Procedure Act (APA).

2. Review expressly provided by statute, either in district court or court of appeals

II. GROUNDS FOR REVERSING AGENCY ACTION

A. Agency interpretation of statutes and regulations

1. The standard for judicial evaluation of agency interpretations of law, known as the Chevron doctrine, was created by the Supreme Court in the case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984). Under the Chevron doctrine, the Court first decides if the statute which created the agency delegates power to adopt interpretations “with the force of law” (i.e., enjoining deference). In other words, the court looks to see whether the statute gives the agency the authority to resolve an issue by rulemaking or by formal adjudication. The Court then undertakes a two step process by asking:

(a) Does the statute speak to the precise issue clearly? If so, the agency’s interpretation can not violate the terms of the statute.

(b) If the statute is ambiguous, is the agency’s choice reasonable? Under the Chevron doctrine, a court will uphold an agency’s interpretation of an ambiguous provision of the as long as its interpretation is “reasonable” or “permissible”

2. Chevron rationale and drawbacks: What judgments underlie the Chevron rule?

(a) Overlap of law and policy, and shifting quality of latter;

(b) Responsibility of political branches;

3. Skidmore/Mead doctrine: The Court defers to the agency’s interpretation based on the thoroughness and validity of its reasoning, its consistency with the agency’s other decisions, “and all those factors that give it power to persuade, if lacking power to control.”

B. AGENCY FINDINGS OF FACT: SUBSTANTIAL EVIDENCE FORMULA

The substantial evidence formula is the standard used by courts to review the evidentiary validity of any agency’s finding of fact. An agency’s decision can be set aside if the findings of fact are not supported by substantial evidence.

1. The court in the case Universal Camera Corp. v. National Labor Relations Board (1951) made clear that under the Administrative Procedure Act and other legislative, when the courts review an agency’s finding of fact, they should consider the whole agency record, that is, the evidence as a whole.

2. The court in the case Allentown Mack Sales and Service v. National Labor Relations Board (1998) also made clear the tight relation between facts and policy. In this case the court pointed out that the Administrative Procedure Act establishes a scheme of “reasoned decision making,” which means not only that an agency’s decree must be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational. The court also made clear that it is the agency’s duty, when relying on an assumption based on past experience with similar evidence to presume something, must articulate this assumption.

C. AGENCY COMPLIANCE WITH PROCEDURAL REQUIREMENTS

1. Rules versus adjudications:

(a) Definitions

In the case Londoner v. City of Denver (1908) the Supreme Court ruled that to fulfill procedural and constitutional requirements, when an agency is making a decision concerning the property or liberty of a relatively small number of persons who will de directly and specifically affected by the decision, each person has a right to a hearing, where they can present arguments and evidence to prove their argument. However, the Court made clear in the case Bi-Metallic Inv. Co. v. State Board of Equalization (1915) that when an administrative rule will be of general applicability or applied to a large number or persons, interested persons do not have a right to an evidentiary hearing before the rule is put in place.

(b) Agency discretion to choose, and policies

In the case SEC v. Chenery Corp. (1947), the Supreme Court ruled that policy decisions were for the agencies to make. If the agency’s explanation to the court is deemed inadequate, the court asks the agency to reconsider its decision. However, the court can not substitute its policy judgment for that of the agency.

(i) Rules: Administrative Procedure Act is both the floor and the ceiling on judicial requirements. It does not apply to interpretive rules or policy statements.

In the case Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. (1978), the Supreme Court decided that although courts should apply the law completely to agency actions, they are not free to impose additional procedural requirements beyond those required by the law.

(ii) Adjudications. Formal; informal.

2. Constitutional due process

D. Agency discretion: review by the courts of agency actions can not be arbitrary and capricious.

E. Agency failure to explain reasoning:

F. Undue delay:

III. PROCEDURE FOR REVERSING AGENCY ACTION

A. Administrative record v. judicial collection of evidence

B. Remand v. vacate. Remand is when the court sends the case back to the agency for it to reconsider. When a court vacates a case, it renders the agency’s action null and void.

C. Requirement that agency rules not be retroactive.

D. Enforcement of judicial decisions

IV. SUITS AGAINST “THE GOVERNMENT”

A. Limits on causes of action: Jurisdictional limitations—gatekeeping. Gatekeeping refers to the fact that in 1993 the Supreme Court decided in the case Daubert v. Merrell Dow Pharmaceuticals, Inc. that courts can check the validity of an agency’s reasoning in making a decision while maintaining the proper amount of deference to the agency’s rulemaking and adjudicative powers.

1. Standing (Means that a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Standing is a concept utilized to determine if a party is sufficiently affected so as to ensure that a justiciable controversy is presented to the court; it is the right to take the initial step that frames legal issues for ultimate adjudication by a court.)

(a) Constitutional

(b) Prudential

2. Ripeness (The principle that the federal courts require an actual, present controversy, and therefore will not act when the issue is only hypothetical or the existence of a controversy merely speculative.)

- The example of guidance documents: interpretive rules and general statements of policy (APA § 553(b)(A))

3. Mootness (A case is moot when the matter in dispute has already been resolved and hence the party is not entitled to judicial intervention)

4. Justiciability: political questions

5. Subject matter

6. Other prudential limits

(a) Exhaustion doctrine: The exhaustion doctrine recognizes that agencies, not the courts, should have the primary responsibility for the programs that Congress has charged them to administer. Thus the agency can apply its special expertise and should also have the opportunity to correct its own mistakes before being taken to court, meaning that a person should exhaust administrative remedies before seeking remedies in the court.

(b) Primary jurisdiction doctrine: The primary jurisdiction doctrine requires courts to refuse to consider a case when protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administered the scheme.

7. Administrative Procedure Act preclusion (§ 701)

(a) Statutory interpretation: clear and convincing evidence (Block, Bowen)

(b) Action vs. Inaction; enforcement policy

(1) Reasons for action/inaction distinction (Southern Utah)

(2) Exceptions to the distinction: e.g., agency refusal to initiate rulemaking (American Horse Protection Ass’n)

(d) See organic acts

8. Sovereign immunity, barring suits for money damages, subject to exceptions:

(a) Federal Tort Claims Act

(b) Tucker Act

V. Suits against officers/municipalities as individuals--damages

A. Threshold issues

1. Cause of action

(a) Federal: Bivens

(1) Except where Congress provides adequate remedy (Schweiker v. Chilicky)

(2) Not inferred when “special factors counsel hesitation (Carlson v. Green)

(b) State: § 1983: “under color of” state law

2. Jurisdiction (already covered)

3. Immunities; relation to historic officers’ liability under the common law, subject to defense of statutory justification.

(a) Qualified

(b) Absolute

B. Major substantive claims

1. Common law--usually intentional torts

2. Constitutional rights

(a) First Amendment

(b) Fourth Amendment

(d) Eighth Amendment

(e) Fourteenth Amendment

(i) Equal protection

(ii) Due process

-Procedural

-Substantive

C. The litigation process

1. Discovery

2. Pretrial motions

3. Trial

4. Judgment and execution