Judicial Review "The rules governing judicial review have no more substance at the core than a seedless grape."

2 Key Questions When can the court substitute its judgment for the agency's judgment? How much does the court defer to the agency's decision? Why is some level of deference to the agency critical to agency function?

3 Scope of Judicial Review Congress sets scope of review, within constitutional boundaries. Since the Constitution is silent on agencies, Congress has a pretty free hand Congress can allow anything from a trial de novo to no review, unless such an action runs afoul of the constitution.

4 Review of Rulemaking and Formal APA Proceedings APA § 706. Scope of review aw/706.htm aw/706.htm

Types of Review

6 Trial De Novo You start over at the trial court Agency findings can be used as evidence, but there is no deference to the agency FOIA Used more by the states than the feds

7 Independent Judgment on the Evidence Decide on the agency record, but do not defer to the agency's interpretation of the record Sort of like appeals in LA

8 Clearly Erroneous Definite and firm conviction that a mistake has been made on the facts or policy Same as reviewing a verdict by a trial judge without a jury

9 Substantial Evidence - Formal Adjudications Could a reasonable person have reached the same conclusion? Standard for reviewing a jury verdict or for taking a case from the jury 706(2)(E) - only applies to formal adjudications and formal rulemaking Should a jury get more or less deference than an agency?

10 Substantial Evidence - Informal Adjudications and Rulemaking 706(2)(A) Arbitrary and capricious or abuse of discretion Same assessment of reasonableness as 706(2)(E), so the result is about the same as the substantial evidence test used for formal proceedings

11 Some Evidence Scintilla test The agency needs to show even less than in the substantial evidence standard Only limited use

12 Facts Not Reviewable At All Congress can prevent certain types of judicial review Compensation decisions under the Smallpox Vaccine Compensation Act are not reviewable Enabling law is always reviewable unless Congress has taken away the court's subject matter jurisdiction

What if the Court thinks the Agency is Wrong? Should the court defer to findings which it believes are clearly erroneous, but are supported by substantial evidence?

14 How can the Court Tell if the Agency is Wrong? When the legislature gives the agency the power, it is also saying that it only wants agency decisions overturned in the most serious cases Remember Matthews v. Eldridge? The value of limiting appeals outweighs the risk of error in all but the most serious cases Courts have different political views than agencies and thus they should be esp. careful about reversing agency decisions.

15 How do the courts treat the agency's legal interpretations? Substitution of judgment with some weight to the agency's findings Substitution of judgment with no weight to the agency's findings Reasonableness test - uphold the agency if the interpretation is reasonable Does reasonable just mean that the judge agrees with it?

16 Questions of Law What are the different types of questions of law? Why are these essentially facial challenges? Is the agency more expert in law than the court?

17 Chevron Clean Air Act Case EPA wanted to consider all of the sources of pollution within a given chemical plant as one source - the bubble model What would be the advantage of this for EPA? Why would environmentalists oppose it? The statute did not give clear guidance What should the court do?

18 Chevron Step One If the statute speaks clearly to the point, then you have to follow the statute This assumes that the statute is constitutional

19 Chevron Step Two If the statute is silent or ambiguous a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency

20 What does it Mean to Be Silent or Ambiguous? Do you just look at the statute itself? Scalia, usually. Do you include legislative intent? Breyer, usually.

21 Political Control of Agencies How does Chevron deference fit with the political control of agencies? Is this a liberal/conservative view?

22 Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001) What was the ambiguity in this case? How did the court resolve it? Does the decision make sense?

23 United States v. Mead, 533 U.S. 218 (2001) administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. What would you look for to decide if Mead applied?

24 Christensen v. Harris County, 529 U.S. 576 (2000) What form was the interpretation? What did the court rule? What other agency documents would this cover? Why is this consistent with our definition of a guidance document?

25 Barnhart Factors The importance of interpretation to agency policy; The period that the agency has held the view; The legal expertise of the agency; The complexity of the problem; These modify Mead What can the agency due to strengthen its case for deference?

26 Public Citizen v. U.S. Dept. of Health and Human Services, 332 F.3d 654 (D.C. Cir. 2003) Was the Medicare Manual binding? Is this consistent with Barnhart? Are Mead and Barnhart consistent?

27 Interpretation of Agency Rules Should interpretation of rules and statutes be the same standard? Are they? How are interpretations of rules treated differently? What perverse incentives does this give the agency?

28 Universal Camera Corp. v. NLRB, 340 US 474 (1951) Employer fires chairman after he testified at an NLRB meeting What did the hearing officer do? Believed the company and did not reinstate him What did the NLRB do? NLRB rejects the hearing officer's finding Reinstated the chairman with back pay

29 What is the key legal issue before the court? Should the court reviewing the NLRB's action consider the hearing officer's recommendation? Is the agency bound by the hearing examiner's opinion? Should the court look only to the part of the record that the agency relies on for their decision or the record as a whole? Court says you have to look at the whole record, including the ALJ's findings

30 When Are the ALJ's Findings Most Persuasive? What type of rulings by an ALJ carry the most weight with the court when there is conflict between the ALJ and the agency?

31 ALJs v. Court Masters Why is the deference due an ALJ different from the deference due a master appointed to a judge, whose findings can only be overruled if clearly erroneous? Where does the Master get the power? What if the agency does delegate final decsionmaking authority to the ALJ, then wants to change a decision?

32 Do Chevron and Substantial Evidence Come to the Same Result? Chevron is about interpretations of statutes Substantial evidence is about factual disputes What about mixed questions of law and fact? Does it really matter which standard we apply? Is this a correct approach?

Adjudications and Other Informal Actions Applications of Law to Facts

34 Arbitrary and Capricious Review Old view Highly deferential to the agency Same as rational relationship test in conlaw Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) Added the notion of looking at the administrative record before the agency Remember, this was about whether there was a reasonable and prudent alternative

35 When Should the Court Allow the Record to be Supplemented (de novo review)? Like a trial transcript on appeal, the record is usually closed There can be an exception if the issue being appealed to the courts is the agency's failure to allow outside input and thus failing to consider all relevant factors. There can also be an exception if the plaintiff makes a credible showing of significant bias by the agency and the court needs to evaluate it. RARE

36 Defending a Rule Natural Resources Defense Council, Inc. v. Herrington, 768 F.2d 1355 (D.C. Cir. 1985) The proposed rulemaking must explain the basis of the rule. In this case the court found that an important issued raised in comments had not been addressed, making the determination arbitrary This can be cured by republishing with more info

37 What is the Standard for Rescinding a Rule? If a rule was properly promulgated, it was based on a record justifying the need for the rule If the agency wants to rescind the rule, it must do a comment explaining why the underlying situation has changed, making the rule unnecessary.

38 Can You Force the Agency to Make or Change a Rule? If the statute provides for a set time What if the agency still cannot get it done? If there is no set time Did the agency respond to your request? If the agency says there is a legal bar, the court can review that What if the agency says it has more important rules to make?

39 Remedies for Improper Rules Remand but leave the rule in force Cannot do this for unconstitutional rules or rules that exceed agency authority What is the impact of staying the rule? Remand and stay the rule Will wild animals escape? Will there be risks? Is the court defeating agency policy making?

40 Relying on Agency Advice - Equitable Estoppel You cannot get money damages - no appropriations Not under the tort claims act It is a defense to criminal claims Can be a defense to civil enforcement How did you get the advice? IRS letter ruling v. advice over the phone Relying on an agency mistake or failure to enforce a law does not work

41 Collateral Estoppel and Non-Acquiesce Same facts, same parties Government is bound Same facts, different parties Government is not bound Non-Acquiesce The government can relitigate the same facts (different parties) in different circuits to get better results Or to get a split to get United States Supreme Court review