Judicial Review
"The rules governing judicial review
have no more substance at the core
than a seedless grape."
Key Questions
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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?
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Review of Rulemaking and Formal APA
Proceedings
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APA § 706. Scope of review
http://biotech.law.lsu.edu/Courses/study_aids/adla
w/706.htm
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Questions of Law
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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?
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Chevron
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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?
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Chevron Step One
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If the statute speaks clearly to the point, then you
have to follow the statute
 This assumes that the statute is constitutional
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Chevron Step Two
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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
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What does it Mean to Be Silent or
Ambiguous?
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Do you just look at the statute itself?
 Scalia, usually.
Do you include legislative intent?
 Breyer, usually.
8
Political Control of Agencies
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How does Chevron deference fit with the political
control of agencies?
Is this a liberal/conservative view?
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Barnhart Factors for Evaluating the
Persuasiveness of the Agency
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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?
10
Miller v. AT&T Corp., 250 F.3d 820 (4th Cir.
2001)
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The Family and Medical Leave Act (FMLA) does
not define medical treatment
 The agency finds that visits to the doctor that
do not require specific treatment are covered
by the act
 What is the ambiguity?
Did the court accept the agency interpretation?
Why does this decision make practical sense?
11
Christensen v. Harris County, 529 U.S. 576
(2000)
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What did the court rule?
 “Here . . . we confront an interpretation contained in an
opinion letter, not one arrived at after, for example, a
formal adjudication or notice-and-comment
rulemaking. Interpretations such as those in opinion
letters--like interpretations contained in policy
statements, agency manuals, and enforcement
guidelines, all of which lack the force of law--do not
warrant Chevron-style deference.”
Why is this consistent with our definition of a guidance
document?
12
United States v. Mead, 533 U.S. 218 (2001)
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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?
13
Public Citizen v. U.S. Dept. of Health and
Human Services, 332 F.3d 654 (D.C. Cir. 2003)
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Is the Medicare Manual a notice and comment
regulation?
 If not, what is it?
 Does this look more like Mead or Chevron?
Did the court find that the Medicare Manual was
binding?
Is this consistent with Barnhart?
Are Mead and Barnhart really consistent?
14
ABA Adlaw Conference - Justice Garland,
2nd Cir, on Chevron:

If you have an ambiguous statute, and need
Chevron deference, do not say that the
interpretation is clear and there is no other way to
construe the law. Say it is ambiguous and you are
making a reasonable interpretation based on your
knowledge of the statute and the regulatory
circumstances.
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Interpretation of Agency Rules
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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?
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Judicial Review of Facts
Scope of Judicial Review of Facts
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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.
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Trial De Novo
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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
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Independent Judgment on the Evidence
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Decide on the agency record, but do not defer to
the agency's interpretation of the record
Sort of like appeals in LA
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Clearly Erroneous
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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
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Substantial Evidence - Formal
Adjudications
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706(2)(E) - only applies to formal adjudications and
formal rulemaking
Could a reasonable person have reached the same
conclusion?
 Standard for reviewing a jury verdict or for taking a
case from the jury
 Should a jury get more or less deference than an
agency?
Hint - substantial means some, not a lot, when you are
the agency
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Substantial Evidence - Informal
Adjudications and Rulemaking
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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
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Some Evidence
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Scintilla test
The agency needs to show even less than in the
substantial evidence standard
Only limited use
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Facts Not Reviewable At All
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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
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What if the Court thinks the Agency is
Wrong?
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Should the court defer to findings which it believes are
clearly erroneous, but are supported by substantial
evidence?
Why is this consistent with the political control of
agencies?
When the legislature gives the agency the power, it is
also saying that it only wants agency decisions
overturned in the most serious cases
Courts have different political views than agencies and
thus they should be esp. careful about reversing agency
decisions.
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Conflicts between ALJs and the agency:
Universal Camera v. NLRB, 340 US 474 (1951)

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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
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What is the key legal issue before the
court?
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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
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When Are the ALJ's Findings Most
Persuasive?
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What type of rulings by an ALJ carry the most
weight with the court when there is conflict
between the ALJ and the agency?
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ALJs v. Court Masters
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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?
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Do Chevron and Substantial Evidence
Come to the Same Result?
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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?
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Adjudications and Other Informal Actions
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Applications of Law to Facts
Usually arbitrary and capricious review
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Arbitrary and Capricious Review
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Old definition
 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
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National Lime Assn. v. EPA, 627 F.2d 416,
453 (D.C. Cir. 1980)

[judicial review should] evince a concern that variables be
accounted for, that the representativeness of test conditions be
ascertained, that the validity of tests be assured and the statistical
significance of results determined. Collectively, these concerns
have sometimes been expressed as a need for “reasoned decisionmaking.” . . . However expressed, these more substantive
concerns have been coupled with a requirement that assumptions
be stated, that process be revealed, that the rejection of alternate
theories or abandonment of alternate course of action be explained
and that the rationale for the ultimate decision be set forth in a
manner which permits the . . . courts to exercise their statutory
responsibility upon review.
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When Should the Court Allow the Record
to be Supplemented (de novo review)?
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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
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Review of Rules
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Defending a Rule
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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
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What is the Standard for Rescinding a
Rule?
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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.
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Can You Force the Agency to Make or
Change a Rule?
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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?
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Remedies for Improper Rules
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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?
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Relying on Agency Advice - Equitable
Estoppel
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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
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Collateral Estoppel and Non-Acquiesce
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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
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