Judicial Review in Admin. Law
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General Assumptions
The admin state rests on presumption that
benevolent experts know how to make “wise”
policy
 Therefore, judges should defer to agencies and
refrain from second guessing them
 Does this philosophy weaken or strengthen
admin law?
 Does it favor judicial activism or restraint in
admin law?
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There are some problems with these views
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“Capture”
Inconsistent philosophies w/in agency about its mission
Agencies don’t mechanically/automatically and
“scientifically” establish/implement policy
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They have a range of policy options and discretion to choose
Agencies don’t always use their discretion wisely
Admin law/judicial review is an attempt to respond
to these problems
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We don’t have to assume judges make better
administrators than agency employees do
We just have to assume administrators will do better if
they know a powerful third party is looking over their
shoulder – H.L. Mencken quote near top of p. 332
Technicalities of Judicial Review

Access – threshold issues to determine whether or
not a court will even hear your cause
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Ripeness (of the issue/cause) Abbott Labs v
Gardner (1967)
 Timeliness
– Courts don’t anticipate harms
 Are
facts fully developed?
 Parties will address the law’s actual, as opposed to
potential or theoretical, impact [this requirement must
be balanced by “law of equity” considerations]
of administrative remedies – has plaintiff
pursued all avenues w/in the agency for relief before
coming to court?
 exhaustion
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Access
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Standing (of plaintiff)
 Adversariness
– “case/controversy” requirement of Art.
III, Sec. 2
– APA §702 much looser than con law standard
which requires “direct” and “substantial” injury claim
 “A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
action w/in the meaning of a relevant statute, is
entitled to judicial review thereof.”
 “[No] action in a court of the U.S. . . . shall be
dismissed . . . on the grounds that it is against the
U.S.
 Injury
–
 only have to show claim is w/in a “zone of interest” a
statute intended agency regulations to protect
 Scenic Hudson Preservation Conf. V FPC (1965) –
extended principle to “aesthetic, conservational,
and recreational” interests
 Assoc. of Data Processing Service v Camp (1970)
involved economic loss due to competition (which
results from agency action)
 U.S. v SCRAP (1973) – challenging “attenuated”
relationship between freight rate increase and litter
in the environment
 Injury
–
 any class of interests the statute implicitly or explicitly
requires the agency to consider in policy making
 Bennett v Spear (1997) – challenge to negative
impact of Endangered Species Act implementation
on operation of water reclamation/irrigation project
 FEC v Akins (1998) – admin law equivalent of a
“taxpayers’ suit,” which is not allowed in con law
context unless qualifying under Flast v Cohen (1968)
exception to such suits
 arising under taxing/spending power
 violated specific constitutional limitation on govt.
taxing/spending power
 Injury
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Access
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Standing (of plaintiff)
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Adversariness
Injury
Remediability – Court can fashion a remedy
to relieve the plaintiff
 Plaintiff not estopped – hasn’t
claimed/denied something previously that
one is now claiming/denying: remember that
the gov’t. can’t be estopped
 Issue not mooted – harms haven’t ceased
since action initiated (Roe v Wade
exception)
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Important Observations
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Doctrines related to “Access” are largely judiciallycreated standards serving as threshold or “gatekeeper”
criteria to limit courts’ workload
“Access” criteria can be [and have been] expanded or
contracted to ease or tighten citizen access to courts
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“Liberal”/activist courts loosen the criteria making it easier for
citizens to sue the govt.
“Conservative” courts practicing judicial restraint tighten these
criteria making it harder to sue
The APA is an instrument to enhance supervision and
control over the administrative state, thus it has some
key provisions concerning judicial review of agency
action and who may challenge agency action
Judicial Review of Agency Actions
(Chapter 7 APA)
Is agency action reviewable?
Y
§702, §704 establishes
"presumption of reviewability"
N
701 (a)
(1) statute prevents J.R.
(2) “committed by law to agency
discretion”
Courts usually follow the wording of statutes granting non-reviewability
of agency action [these are rare], except in cases where a constitutional
issue or a fundamental right has supposedly been violated.
“Committed by law to agency discretion” could be a serious wildcard;
Court has waxed and waned on interpreting this phrase.
The definition of an agency "action" extends from action through
inaction.
Scope of Review: § 706
Questions of Fact
“Substantial Evidence”
§ 556-557 hearings
De Novo Review
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Verification of Events
Ascertaining Intent
Determining Credibility of
Witnesses
Questions of Law
•Statutory authority and
obligation (ultra vires and
discretion issues)
•Procedural compliance
Deference to Finding of Facts
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§ 706(2) allows courts to void agency actions found to be
 (a) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;
 (e) unsupported by substantial evidence in a case subject to
§ 556-557 hearings or otherwise reviewed on the record of
an agency hearing provided by statute; or
 (f) unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court.
Unless there is a clear absence of substantial evidence
(information that reasonable minds could accept as
sufficient to support a rational conclusion), or there is
serious challenge to the credibility of the evidence agency
has relied upon, Courts will defer to agency’s findings.
Deference to Agency Interpretation of Law

§ 706(2) allows courts to void agency actions
found to be
(b) contrary to constitutional right, power, privilege,
or immunity;
 (c) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right;
 (d) without observance of procedure required by
law
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Motor Vehicles Manuf. Assoc. v State Farm (1983)
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NHTSA adopted rule in 1977 requiring “passive”
safety system (either airbags or seatbelts) in all cars
manufactured after Sept., 1982
By 1981 it was clear that almost all new cars had
seatbelts, rather than expected 60%-40% split
Reagan’s new NHTSA head then rescinded the rule
before its effective date
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Safety benefits of airbags would not be realized
Automatic seatbelts too easily disabled
Thus, no real safety benefits accrue BUT
c. $1 billion cost to consumers from implementation of rule
would depress auto sales and poison public’s attitude
toward safety regs in general
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State Farm sued to prohibit application of the
new rule (rescinding the original rule) and to
compel the application of the original rule
The new rule, as was the case with the original
rule, was made under APA §553
No allegations of procedural irregularities or
agency excess of statutory authority
Rather, claim of “arbitrary & capricious”
rulemaking (revoking rule w/o justification and in
way as to thwart congressional intent)
Agency’s authorizing statute provides for judicial
review of agency “action”
Court holds “action” to include “revoking” a
regulation as well as imposing one
Court’s ruling:
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Agency action is “arbitrary and capricious”
which is prohibited by §706(2)(A) of the APA
What constitutes “a/c” action?
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No rational relationship between facts found and
choice made
Agency relied on factors Congress didn’t want
considered
Agency ignored important aspects of the problems it’s
charged with addressing
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What made NHTSA’s action “a/c”?
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Didn’t explain why rule couldn’t require air bags
 agency’s lawyers supplied this ex post facto rationale in
brief
 no evidence the agency had relied on this line of
reasoning in decision-making process
Agency didn’t explain why it couldn’t require some kind of
non-detachable automatic seat belt
Agency rejected statistical evidence it had before it as
invalid but didn’t conduct alternative studies to resolve
uncertainties over the impact that the original rule would
have on seat belt use
Note: this case came a year BEFORE the
Chevron case covered in Ch. 4
Chevron v Natural Resources Council (1984)
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Facts: EPA issued national standards for air
pollution levels. Congress then required states
which had not met standards to require
industries within their borders to obtain state
permits for the addition and operation of certain
sources of pollution, “major stationary sources.”
EPA, pursuant to rulemaking authority delegated
to it in the statute to “implement the permit
requirement,” allowed states to define an entire
plant, rather than individual machines w/in it, to
constitute “major stationary source”; this came
to be referred to as the “bubble concept.” This
allowed EPA to monitor only a plant’s total
emissions for compliance with pollution
standards.
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NRDC’s claim: EPA acted outside its statutory
authority by adopting this rule, i.e., when
Congress passed the statute imposing
requirements on states lagging behind national
clean air standards, the clear meaning of its words
and clear intent was to require a separate permit
for each pollution-emitting machine.
Court’s ruling: an agency’s interpretation of its
statutory authority must be upheld unless it is in
violation of precise language in the statute.
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Language of statute is ambiguous, i.e., “major
stationary source” is never defined
Agency’s interpretation is “a permissible construction
of the statute” and not “manifestly contrary to the
statute.”
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Case’s significance:
in the realm of administrative law, the principle
of “judicial restraint” in reviewing agency action
reigns supreme. This is the chief dimension of
the “deference doctrine.”
 this ruling has been cited in more than 10,000
cases since
 deference doctrine does NOT extent to agency
interpretation of constitutional and other legal
principles, only its own statutory authority
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Citizens to Preserve Overton Park v Volpe
(1971)
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Sec. of DOT can approve highways through public parks
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only if “no feasible and prudent” alternative exits
even then, he must make every effort to ensure minimum harm to the
park
Volpe, Sec. of Transportation, approved construction of I-40
through Overton Park (containing the Memphis Zoo) w/o any
formal factual findings on either of these points.
Citizens’ group claims violation of authorizing statute