Part III - Judicial Review
Chapter 9 - Scope of Judicial Review - 534
Key question - when can the court substitute its judgment for the agency's
Congress sets scope of review, within constitutional boundaries.
Thus Congress can allow anything from a trial de novo to no review, unless
such an action runs afoul of the constitution.
§ 9.1 Scope of Review of Agency Findings of Basic Fact - 535
Define the following levels of review:
Trial de novo
Independent judgment on the evidence
Substantial evidence as applied to formal adjudications
Substantial evidence as applied to informal adjudications
Facts not reviewable at all
§ 9.1.1 The substantial Evidence and Clearly Erroneous Tests - 536
Universal Camera Corp. v. NLRB - 536
Who was fired and why?
What did the hearing officer do?
What did the NLRB do?
What is the key legal issue before the court?
Was there substantial evidence supporting the agency's decision?
Is the agency bound by the hearing examiner's opinion?
Should the court ignore the recommendation and only look at the final ruling?
Notes on Universal Camera from 547
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?
DeFries v. Association of Owners, 999 Wilder - Hawaii - - 541
What type of agency proceeding is this?
What did the employer claim caused the injury?
What were the conflicting facts?
What standard does the state law use?
What does the court find is the purpose of the statute?
What does this matter?
Who has the duty to do statutory interpretation in Hawaii?
What does the court do?
Could a federal court do that?
Notes and Questions - 545
2 - What is the standard for reviewing a jury verdict?
Should a jury get more or less deference than an agency?
Why should the court have to defer to findings which it believes are clearly
erroneous, but are supported by substantial evidence in the record?
3 - Do you think there really is a clear difference between substantial and
4 - Is the issue really burden of proof/persuasion rather than standard of
What is the employer's burden in proving an injury is not work-related?
5 - Some states do not follow Universal Camera and require the agency to explain
why it rejected the ALJ's opinion.
What type of ruling by an ALJ carry the most weight with the court when there
is conflict between the ALJ and the agency?
6 - The United States Supreme Court claimed in Universal Camera that it would
seldom overturn an appeals court using the substantial evidence test.
It did so in Allentown Mack Sales v. NLRB (1998)
What was the issue in Allentown?
Why did the SC reverse the appeals court?
Is the SC saying that it defers to the lower courts, or only that it does
not review them, but when it does review them, it does not defer to them?
§ 9.1.2 Independent Judgment and De Novo Review - 550
§ 9.1.2a Federal Decisions - 550
This is a odd collection of cases decided in the 1920s and 1930s but never
clearly overruled. They support
a substitution of the court's decision for the agency's decision, but based
on the agency's record. Since the
modern trend is to remand unless there is a trial de novo provided by congress,
these are probably aberrant cases.
§ 9.1.2b State Decisions - 553
As is consistent with other areas, the state courts are less deferential to
agencies than are the federal courts.
Bixby v. Pierno (CA - 1971)
How did the CA SC differentiate between the problems faced by someone fighting
a license revocation and those faced by a powerful trade group or corporation?
How does this explain it's ruling in Bixby?
Frink v. Prod - 555
What is the dispute?
What does the court say is the difference between initial qualification for
benefits or licensing and the termination for benefits or licensing?
How did the court change the rule in this case?
Why did it change the rule?
Notes and Questions - 557
§ 9.2 Scope of Review of Issues of Legal Interpretation - 557
How should the courts treat the agency's interpretation of what the law means?
Classic three bears
Substitution of judgment with some weight to the agency's findings
Substitution of judgment with no weight to the agency's findings
Reasonableness test - uphold the agency if the interpretation is reasonable
This tends to merge in that no agency interpretation that goes against the
enabling statute is going to be upheld, while if the interpretation is consistent
with the enabling act is also going to be seen as reasonable.
Connecticut State Medical Society v. Connecticut Board of Examiners in Podiatry
What was the dispute over?
Who sued and why?
What did the podiatry board claim as it the justification for the asking the
court to defer to it's right to determine the scope of podiatry?
What did the court find?
Where did the court turn for expertise?
Chevron U.S.A., Inc. v. Natural Resources Defense Council - 560
Very important case
What was the issue?
What was the practical effect of the EPA standard that was being contested?
What was the court's first analytic step?
What is step 2?
Did Congress speak directly to this issue?
What did Congress want balanced in enforcing the Clean Air Act?
Why did Congress not spell out how it wanted the law to be enforced?
What did the court find in step two about the legality of the EPA standard?
How is step two very much like the arbitrary and capricious standard?
What does the United States Supreme Court say is different about the roles
of courts and agencies in resolving political questions?
Notes and Questions - 563
2 Weight of an agency's interpretation
When does the agency have an edge over the courts?
What factors should indicate to the court that agency is probably correct?
4 - Does Chevron apply to interpretative rules?
5 - Exceptions to Chevron
What are situations where the courts often ignore Chevron?
8 - Legislative History
How do you decide congressional intent?
How can legislative history be manipulated?
Scalia usually is against legislative history and Breyer is for it, but in
some cases like the FDA Tobacco Case the switch roles.
§ 9.3 Scope of review of Application of Law to Facts - 571
Why is this the most complex deference area?
McPherson v. Employment Division - 571
Was a hostile workplace good cause to quit a job and thus should the worker
How does the court dodge the issue and transform this into a law, rather than
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