Review of Administrative Decisions:
of Courts, ALJ’s and the DAL
Professor John Devlin
1
Preliminary Reminders
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Agencies are not and should not be “neutral” with
respect to the laws they administer; they are
established by Congress or state legislatures for
the purpose of pursuing certain policies.
Agencies are entitled to establish and pursue
policy either through rulemaking or through caseby-case adjudications. S.E.C. v. Chenery Corp. ,
332 U.S. 194 (1949).
2
Administrative Adjudications

Under both the federal APA and the LAPA,
administrative agencies make many case-by-case
decisions, many without formal adjudicative
processes. As ALJs, these will generally never
come before you for decision.
3
Administrative Adjudications Before ALJs

Under both the federal APA and the LAPA, ALJs
hear only a subset of such decisions, generally
those non-rulemaking actions that are required by
law to be made
 “on the record after opportunity for an agency
hearing” 5 U.S.C. 554 (a); or
 “on the record after notice and an opportunity
for a hearing” La.R.S. 49:951.1(1),(3).
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Process of Formal Administrative
Adjudication: the Traditional
Model of the Federal APA
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Role of the “Traditional” ALJ
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Agency usually makes initial decision by informal
internal processes.
Person aggrieved by agency decision may seek review
through relatively trial-like de novo hearing before an
agency ALJ.
ALJs are located within and are considered part of the
agency, though their independence is protected by
statute and organizational structure.
ALJ develops expertise in particular field.
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Review of ALJ’s Decision
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Decision of ALJ is subject to review within the
agency
Ultimate review and final decision is (potentially)
by head of the agency.
Person aggrieved by final decision of agency
may seek judicial review, as provided in the
organic statute or by the APA.
7
Process of Administrative Adjudication:
Louisiana’s Department of
Administrative Law
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Agency Decisions and the DAL

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As with the traditional federal model, the agency
makes and reviews its decision by internal
procedures, and a person aggrieved may seek
review through a relatively trial-like hearing before
an ALJ
However, unlike the traditional model, the ALJs
have been removed from the individual agencies,
and concentrated in an independent body, the
Department of Administrative Law (“DAL”).
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Role of the DAL ALJ: Hearing
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The DAL ALJ does not necessarily have personal
expertise in the subject matter of the hearing
The DAL ALJ acts as a neutral, independent arbiter
whose role is to resolve disputes between an agency and
a person aggrieved by one of the agency’s decisions.
The DAL ALJ does so by holding a relatively trial-like de
novo hearing, using procedures set out by the LAPA and
the DAL’s procedural rules. LaR.S, 49:992, 955 et seq.
Unlike in the traditional federal model, the agency’s role
in that hearing is simply that of one litigant.
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Role of the DAL ALJ: Decision

In contrast to the traditional model of the federal
APA, a decision by a DAL ALJ is the “final
agency” action on the matter, subject only to
judicial review.
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Review of the ALJ’s Decision

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“A person who is aggrieved by the final decision
or order” of a DAL ALJ may seek judicial review of
that decision or order. La.R.S. 49:964(A)(1).
However, no agency or person acting on behalf of
the agency may seek judicial review of an adverse
decision or order. La.R.S.964(A)(2); 992.B.(3).
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Consequences of the Louisiana Model
for the Agency

For the Agency, the Louisiana DAL model means
that it no longer retains all of its ability to interpret
law or to formulate and implement policy through
case-by-case decisions.
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Consequences of the Louisiana Model
for the DAL ALJ

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For the DAL ALJ, the Louisiana DAL model means that, at
least in cases where the decision is adverse to the
agency, you have become the final word on interpretation
of law and legitimacy of policy.
Your role has become, in effect, more like that of a
reviewing court, at least in part. Thus your exercise of
your role perhaps should be guided, at least to some
extent, by the legal principles that have been developed
to govern judicial review of administrative action.
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Judicial Review of Administrative
Decisions under the
Federal APA and the LAPA
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Standards of Judicial Review
Under the Federal APA

Section 706(2) of the federal APA provides that a
reviewing court shall be set aside if found to be:
 (a) “arbitrary, capricious, an abuse of discretion of
otherwise not in accordance with law;”
 (b) contrary to [the Constitution];
 (c) in excess of statutory jurisdiction . . . ;
 (d) without observance of procedure required by law;
 (e) unsupported by substantial evidence [in cases
required to be decided on the record before ALJs].
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Standards for Judicial Review
Under the Federal APA: Translated

Judicial review of final actions of federal agencies
essentially involves four broad categories of inquiry by
the reviewing court:
 Review of the agency’s procedures;
 Review of the agency’s findings of fact;
 Review of agency’s interpretation and application of
law; and
 Review of agency’s exercise of judgment and
discretion.
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Standards of Judicial Review
Under the LAPA

La.R.S. 49:964(G) provides that a reviewing court
“may reverse or modify the [an agency
adjudication] if:
 “substantial rights of the appellant have been
prejudiced”
 “because the administrative findings,
inferences, conclusions, or decisions are:
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(1) In violation of constitutional or statutory provision;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of
discretion; or
(6) Not supportable by a preponderance of the
evidence as determined by the reviewing court.
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Standards of Judicial Review
Under the LAPA: Translated

Judicial review under the LAPA involved the same four
basic categories of inquiry by the reviewing court:
 Review of the agency’s procedures;
 Review of the agency’s findings of fact;
 Review of agency’s interpretation and application of
law; and
 Review of agency’s exercise of judgment and
discretion.
20
Judicial Review of Administrative
Factfinding: the Federal Analysis
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In cases involving formal proceedings before ALJs,
federal courts give great deference to the agency’s
findings of fact. Such findings will be upheld if
supported by “substantial evidence” in the record viewed
as a whole. 5 U.S.C. 706(2)(E).
Decision by ALJ, while not the “final” agency decision
subject to judicial review, is nonetheless part of the
“record as a whole” reviewed by the court. Universal
Camera Corp., 340 U.S. 474 (1951).
21
Judicial Review of Administrative
Factfinding: the Louisiana Analysis
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Basic rule: de novo review of the record, court makes its
own determination of “preponderance of the evidence.”
La.R.S. 49:964(G)(6).
Because the court does not see the witnesses or receive
evidence directly, the court is directed to give “due
regard” to agency determinations of credibility. Id.
Courts should give some deference to agency’s expertise
when drawing inferences from the facts shown.
Armstrong v. La. State Board of Medical Examiners, 868
So.2d 830 (4th Cir. 2004).
22
Judicial Review of Agency Interpretation
of Laws: the Federal Analysis
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Federal Courts give substantial deference to an agency’s
interpretation of its governing statute.
Agency interpretations which result from careful consideration
with public input are evaluated by a two part test;
 If the statute is clear, its plain terms control; but
 If the statute’slanguage is subject to more than one
construction, the court should defer to the agency’s
interpretation if that interpretation is “reasonable.”
Chevron USA v. NRDC, 467 U.S. 837 (1984).
23
Judicial Review of Agency Interpretation
of Law: the Louisiana Analysis
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Louisiana courts decide all issues of interpretation of law
de novo, and give “no special weight” to the agency’s
interpretation. Women’s and Children’s Hosp. v. D.H.H.,
984 So.2d 760 (1st Cir. 2008)
Indeed, some questions of – such as challenges to the
constitutionality of a statute – may be presented only to a
court. Albe v. La. Workers’ Comp. Corp., 700 So.2d 824
(La. 1999).
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Judicial Review of Agency’s Exercise of
Judgment and Discretion: Federal Analysis

Federal courts engage in careful but searching review of an
agency’s exercise of judgment and discretion, including whether
the agency:
 made a clear error of judgment;
 considered all of the relevant factors and all alternative courses
of action;
 responded to contrary evidence and arguments; and
 Articulated a connection between the facts found, the agency’s
statutory mandate, and the choices the agency made.
Motor Vehicle Mfrs’ Assn. v. State Farm, 463 U.S.29 (1983); Citizens
to Protect Overton Park v. Volpe, 401 U.S.402 (1971).
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Judicial Review of Agency’s Exercise of
Judgment and Discretion:
the Louisiana Analysis
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Recent Louisiana cases generally conceive of agency “abuse of
discretion” and “arbitrariness” as involving only whether the
agency’s decision was supported by evidence or against the
weight of the evidence. Wise v. Bossier Parish School Board, 851
So.2d 1090 (La. 2003)
Older cases suggest a broader inquiry into an agency’s exercise of
discretion, including by requiring articulation by the agency of how
its decision furthers its statutory mandate. Save ourselves, Inc. v.
La. Environmental Control Commission, 452 So.2d 1150 (La. 1984)
In appropriate cases, courts will defer to the agency’s expertise.
Armstrong v. Bd. of Med. Examiners, 868 So.2d 830 (4th Cir. 2004).
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Standards for Judicial Review Under the
Federal APA and the LAPA Compared
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Similar in outline: both sets of courts review
administrative procedure, factfinding,
interpretation of law and exercise of discretion
Quite different in the degree of deference given by
reviewing court to administrative decisions
However, even Louisiana courts give some
deference to agency exercise of judgment and
discretion
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What All This Means For DAL ALJs
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DAL ALJs / Louisiana Judges:
Relevant Similarities & Differences

Differences in Status and Role:
 La.Const Art. V vests judicial power of the state
exclusively in judiciary. Moore v. Roemer, 567 So.2d
75 (1990).
 Some decisions (e.g. constitutionality of statutes) can
only be made by courts. Albe v. La. Workers’ Comp.
Corp., 700 So.2d 824 (1997).
 Election gives judges a democratic legitimacy that
appointed ALJs lack.
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Functional Differences:
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Primary difference: At least with respect to factual
issues, DAL ALJs act as primary decisionmakers, not
as a reviewing tribunal. Bell Oaks, Inc. v. La. Dept. of
Health & Hospitals, 697 So.2d 739 (1st Cir. 1997).
DAL ALJs conduct hearings and hear the witnesses
and see the evidence for themselves. Judges review
the record produced at the administrative hearing.
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Functional Similarities:
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Like judges (and unlike federal ALJs), DAL ALJs’
primary role is to assure fairness to litigants, not to
promote the agency’s policy goals
Like judges (and unlike federal ALJs), DAL ALJs are
generalists rather than specialists, who generally do
not share the agency’s substantive expertise.
Like Louisiana judges, (and unlike federal judges) DAL
ALJs find facts de novo, based upon a preponderance
of the evidence.
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No Deference to Agency Factfinding
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Since DAL ALJs hear the witnesses and see the
evidence for themselves, there is little reason to
defer to agency determinations of the facts.
La.R.S. 49:964(G)
Indeed, since ALJs hear the witnesses for
themselves, there is no reason to apply the
statutory admonition to judges to give “due
regard” to agency determinations of credibility.
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Limited Deference to Agency
Interpretation of its Governing Statute
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With respect to issues of agency interpretation of law,
DAL ALJs do function somewhat in the manner of a
reviewing tribunal.
However, since ALJs are not judges, they are not bound
by the rationale of the Louisiana courts’ refusal to give
deference to agency interpretation of governing statutes.
In the absence of such a binding rule, strong arguments
support giving some degree of deference to agency
interpretations of their governing statutes.
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Real Deference to Agency Exercise of
Judgment and Discretion
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Also with respect to issues of agency exercise of
discretion and judgment, DAL ALJs do function
somewhat in the manner of a reviewing tribunal.
Louisiana law is not clear regarding how such exercises
of judgment and discretion should be reviewed by courts,
other than that they must be supported by evidence.
In the absence of clear law to the contrary, strong
arguments support giving some degree of deference to
agency interpretations of their governing statutes.
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Fairness: To Whom?

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Traditional due process has focused on the rights
of the individual.
Since the 1970s decision in Mathews v. Eldridge,
the United State Supreme has recognized that the
public interest must also be considered.
 The court recognizes that individual interests
must be balanced against the costs to society
of providing extensive procedural safeguards
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