Climate Change Project

Table of Contents



Administrative Law - Fall 2001

Part III - Judicial Review

Chapter 9 - Scope of Judicial Review - 534

Key question - when can the court substitute its judgment for the agency's judgment.

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

Clearly erroneous

Substantial evidence as applied to formal adjudications

Substantial evidence as applied to informal adjudications

Some evidence

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 clearly erroneous?

4 - Is the issue really burden of proof/persuasion rather than standard of review?

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 - 558

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?

Who sued?

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 get unemployment?

How does the court dodge the issue and transform this into a law, rather than fact issue?



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