Judicial Review
Key Questions
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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
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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
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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
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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
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
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
Substantial Evidence - Formal
Adjudications and Rulemaking
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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
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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
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Scintilla test
The agency needs to show even less than in the
substantial evidence standard
Only limited use
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
Labor Politics
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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)
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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?
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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
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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)
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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
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
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?
How should the agency handle such conflicts in
the record?
Deference to Agency Factfinding
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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)
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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
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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
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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)
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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
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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
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Should a Court Defer to an Agency's
Interpretation of Law?
 Why?
How should the courts treat the agency's legal
interpretations?
Ratemaking Cases
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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)
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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)
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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.
Next Stop - Chevron