Judicial Review

Key Questions

When and why should the courts defer to the agency's decision?

What can the court do when it rejects the agency's decision? Federal v. state

What is the proper standard of review for agency actions?

What is the law versus fact distinction?

What is the Court Reviewing? - The Agency Record

The agency develops a written record of the proceedings before it

This is like a trial transcript in that once it is completed, it cannot be supplemented on judicial review The courts review agency actions as they would trial

court rulings, unless it is de novo review In most cases rejecting an agency's decision or action,

the court remands for that the agency can cure the record This means going back and supplying the missing

evidence

Types of Judicial Review of Agency Fact Finding

Congress is free to set the standards of review for agency fact finding

If Congress does not set a standard, then the default is provided by the APA

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

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

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

Substantial Evidence - Formal Adjudications and Rulemaking

Formal proceedings are rare 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?

Substantial Evidence - Informal Adjudications and Rulemaking

Almost everything is informal 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

Some Evidence

Scintilla test The agency needs to show even less than in the

substantial evidence standard Only limited use

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

Labor Politics

What is the history of labor unions? Coal mines Steel

Why would Congress want to encourage labor unions in 1935?

Why were unions unpopular with industry?

National Labor Relations Board (NLRB)

Created by the Wagner Act of 1935 Classic New Deal agency Modified by the Taft-Hartley Act and other laws

Structured to encourage unions Independent agency run by a commission

Presidents can only replace commissioners as their term expire

This means that the commission is often out of step with the current administrative

How has the Role of Unions Changed?

Why happened in the 1960s and 1970s to discredit labor unions?

What happened to core unionized industries? What is the effect of global competition? What is the only remaining stronghold of unions?

Why? What political issues may strengthen unions?

Effect of Politics on the NLRB

Congress is not supportive of the NLRB's original mission

Most of the workforce is not unionized Congress has not changed the statutory presumptions

underlying the NLRB Union/Management relations are very political

Thus NLRB decisions are very political The NLRB does not like to make clear rules that

Congress might change

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

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

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?

How should the agency handle such conflicts in the record?

Deference to Agency Factfinding

Why should the courts defer to agency factfinding?

How does the expertise of the ALJ and agency decisionmakers differ from the judges?

What about the practical concerns? How about the LA problem of final decisions

being made by non-expert ALJs?

Allentown Mack v NLRB, 522 US 359 (1998)

Recertification election politics Why create a presumption against letting

employers force recertification elections? What are the pressures on employees when a

union is seeking a certification election? What were the facts that the NLRB was

reviewing?

Standard of Proof

Did the NLRB say that it had a presumption against recertification elections and thus required a high standard of proof for employers contesting elections?

What was the practical effect of its factfinding? Why did this lead the majority to reject its ruling

and remand for further review by the agency? Why does the dissent say this is a problem for

agency factfinding?

Burdens

Burden of Persuasion Always stays with the person who loses if that

issue is found against them Burden of Production

Shifts once the other side has put on evidence of their prima facie case

While the APA is not clear on this, the courts have held that persons challenging agency actions retain both burdens

Zhen Li Iao v. Gonzales, 400 F3rd 530 (2005)

What is the regulatory conflict for immigration judges? How many people in China follow Falun Gong What is the implication if the court finds that

they all have a reasonable fear of persecution? Is this what Congress and the Administration

want? What did this immigration judge rule?

Reviewing Policy in the Guise of Facts

What did Posner think the judge should have done?

What sort of factors did Posner want considered? In another case Posner found that delay alone

was enough to let the alien stay Is this the fault of the agency or does it reflect a

Congressional policy? Should the courts use judicial review to challenge

Congressional policy?

Questions of Law

Should a Court Defer to an Agency's Interpretation of Law? Why?

How should the courts treat the agency's legal interpretations?

Ratemaking Cases

Very controversial in the early days Seen as a constitutional fact problem

Did the rate confiscate the regulated party's property?

No longer controversial The courts almost always defer to the ratemaking

agency unless it is acting unlawfully

U.S. v. Fifty-Three Eclectus Parrots, 685 F2d 1131 (1982)

Is the determination of whether a parrot species is wild a factual or a legal decision? Since there was a statutory definition of wild,

and the defendant could not rebut its application, the court found that this was a legal question

Why are mixed law and fact questions subject to manipulation by the courts?

Skidmore v. Swift & Co., 323 U.S. 134 (1944)

We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

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