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Under
the federal APA, abuse of discretion is one element used in describing the scope of
review. Discretion may be found to be abused where, for example, no facts support the
decision or the decision is the result of an irrational process of deciding.
The
exercise of discretion may have to be accompanied by an explanation to show its
reasonableness under the particular language of the authorizing statute. Without adequate
explanation, the decision might be found to be an abuse of discretion, or irrational. |
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An
agency can act only within the delegation given in its statute. The statute will determine
whether the agency has formal adjudication or legislative rulemaking authority. The agency
must define its view of its delegation in the first instance. Courts are inclined to be deferential
to
the agency interpretation in many situations. The court is least likely to be deferential when
the
statute is clear on its face or the statute uses nontechnical language familiar to the court.
In
these circumstances, the court may substitute its interpretation where the agency has reached a
contrary interpretation. |
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The
exhaustion doctrine requires that the party seeking review demonstrate that the party has
exhausted all the possible avenues of redress within the agency. Under exceptions to the
doctrine, the party might attempt to show that no adequate remedy would available from a
continuation of following agency procedure to its final point. |
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Facts
may be described in many ways. Where a court characterizes facts as being of a general
nature or being common knowledge (not technical), the court is more likely to substitute its
judgment for that of the agency. When facts are characterized as technical and scientific facts,
courts are more likely to defer to the agency interpretation of the their meaning and implication.
Courts picture themselves as generalists, not specialists. |
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Under
the terms of most APAs, only final agency action is reviewable. The most obvious final
agency actions occur when the rule is promulgated or the adjudication order is made and
served by the agency. The many agency decisions that proceed final agency action are not
likely to be subject to judicial review, absent special circumstances. |
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Many
factors influence courts in judicial review. Some authors have referred to these many
factors as "mood factors." Obviously, the main factors influencing judicial review are
the basic
tests such as the substantial evidence for facts and whether findings were properly made and
explained. Other factors include the floodgates arguments (courts do not want to make a
decision that will open the floodgates of litigation), the degree of interference with agency
functions, the confidence that the agency has won from its past record of action and litigation,
the value of uniformity of agency decisions over time (courts are seen as likely to give less
uniform responses), the reluctance of courts to get involved in the application of the facts to the
law, the special judicial sensitivity to such issues as individual liberty, the judicial reluctance
to
interfere until the fact gathering process has ended and the agency has exercised the full extent
of its discretion. Courts often identify the importance of maintaining the separation of powers
doctrine in the federal system and do not make decisions that would tend to put the judiciary in
a predominant position. In brief, judicial review should be seen as both a technical subject of
legal doctrine and statutory interpretation as well as an eminently practical process that also
looks to the impact of court decisions on the day to day operations of both the agency and the
court. |
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The
party seeking judicial review will often seek to stay agency pending the completion of
judicial review. The issuance of this type of injunction is not usually automatic and must be
specifically sought. The party will often be required to first ask the agency to agree to stay
its
action before going to the courts for a judicial injunction. |
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Here
as elsewhere the parties must carefully determine whether there is a period of limitations
after which judicial review may be obtained. A common time limit in APAs is 60 days after the
agency has finally decided. |
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Judicial
review of an agency decision almost always involves an interplay between at least two
statutes, the general APA and the specific legislation which authorizes the agency to act. It
is
important to the practitioner to refer to both, because the specificity of the organic agency
legislation may impact on the generality of the APA. The organic statute will set out the factors
that the agency must consider in reaching the decision. |
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Agencies
may seek to short-circuit a request for judicial review by arguing that the party should
instead be seeking reconsideration from the agency as a prelude to judicial review. This is a
variant of the exhaustion argument. More modern APAs usually do not require the party to
seek reconsideration once the agency has made its initial final decision. |
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The
APA or appropriate organic statute must be carefully reviewed to determine the power of
the court to act after finding that the agency has erred. A court may have the power, in some
instances, to remand, to enter a new decision, or to completely overturn what the agency has
done. |
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Courts
use numerous presumptions in the process of judicial review. There is a general
presumption of honesty and integrity afforded to agency decisionmakers. There is a
presumption of regularity, that the agency was likely to follow its own rules and procedures.
There is a presumption of reviewability applied to many decisions, but there is also a
presumption of unreviewability applied to some types of decisions. The challenging party will
have the burden of overcoming these presumptions that help an agency. |
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Judicial
review of agency decisions does not simply ask the broad question of whether the
agency decision was right or wrong. The agency decision is broken into its component
elements and the appropriate scope of review is applied to each element. Questions of fact will
be reviewed under the deferential substantial evidence test. Questions of law will be reviewed
in the light of the court's authority to fully substitute its judgment for that of the agency.
Mixed
questions of fact and law may be further broken down with different elements allocated
primarily to the court or to the agency. Each element of the decision must be separately
identified and discussed in light of the scope of review afforded to that element. |
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The
court reviews the record of the agency decision. Sometimes the record will be a closed
record developed at an adversarial hearing like an adjudication. Other records for other
decisions may be less formal and broader in their potential content. Without a record of some
kind, the court cannot conduct meaningful review. The record might consist of any of the
following items, to identify only some of the possibilities: submissions to the agency, documents
expressing agency action, other documents identified by agency, any information that
considered by the agency in making its decisions, and documents required to be prepared by
the statute. Some APAs may require that staff communications with the decisionmaker be
included in the record.
Usually
the record must represent what was available at the time the decision was made.
Judicial review may occur months or years later. Post hoc rationalization or reasons identified
for the decision based on post hearing information usually cannot be used. |
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Some
courts may give attention to the residuum rule which requires that the agency decision
cannot be based exclusively on hearsay evidence. There must be a residuum of "legal"
evidence. Many jurisdictions do not recognize this rule at the judicial review level. At
the
agency level decisionmaking process, however, agencies may require that the decision have a
basis in legal evidence, not based solely on hearsay. |
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An
agency action must be ripe for judicial review. This requirement often seeks to identify the
concreteness of the issues and involves concerns as to whether the court can resolve the matter
if it intervenes at the requested time. A twofold test may be used. The fitness of the decision
for judicial review and the hardship to the parties if judicial review is not available at that time.
Final agency action meets the ripeness test. |
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Judicial
review is the final procedural step in the administrative process. There are many
perspectives on the role and practice of judicial review. One view of judicial review might
emphasize its role in allocating final decisionmaking authority between the court and the agency.
Another view might emphasize its role in terms of the separation of powers between courts
and the executive branch. From the point of view of the parties, judicial review arguments can
often be summarized as to whether the party wants to sustain or overturn the agency decisions.
Arguments will then be made in terms of doctrine and facts that reasonably support the goal to
be reached on the basis of the facts of the particular case. |
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The
various APAs and court decisions identify a wide range of tests that courts might use on
various elements of the agency decision being reviewed. The federal APA uses, in part, the
arbitrary and capricious test. Some opinions identify the clear error of judgment test.
Courts
might require that the agency explain when strong, contrary evidence has been rejected by the
agency. Where there are conflicting choices identified, the court may permit the agency to have
the option of choosing any of the conflicting choices that meet a reasonableness test. A
common expression used by courts is to say that the agency decision need only be reasonable,
it need not be "right," under, for example, the substantial evidence test. Before a
court will find
reversible error, it will frequently require that the complaining party show specifically that they
suffered substantial prejudice from the agency error. The substitution of judgment language is
often used, indicating that the court will not substitute its judgment for that of the agency if the
agency is reasonable in questions of fact, but the court can substitute its judgment on matters of
law. If evidence is uncontradicted, the agency will be told that it cannot simply disregard it.
The
substantial evidence test that is used on agency fact finding has been described as involving a
variety of elements. Detracting must be considered. Uncontradicted evidence cannot be
ignored. Generally, the court will not or cannot weigh the evidence in the manner that the
agency does under its use of the preponderance of the evidence test. The court will not
substitute its judgment of the facts for that of the agency. Delegation of authority issues may be
given special treatment. In the federal system, the Chevron case is the leading example.
Under
that test, the agency interpretation is given great deference unless the wording of the statute is
clear and the agency did not follow its clear mandate. If the wording is ambiguous, the agency
interpretation will be given deference so long as it is reasonable. Sanctions decided upon by
the agency will also be given great deference. The courts will often accept the agency choice
of
sanctions if they are within the range identified by the statute. The court may not impose a
general requirement of consistency between cases and may not require that the agency show
that it considered less drastic alternatives. |
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The
standing requirement is a major hurdle that must be passed in order to qualify for judicial
review. Standing for judicial review has constitutional, statutory, and prudential overtones.
This
is to be distinguished from standing at the agency level where the constitutional and prudential
considerations are not likely to be present. The prudential elements of the doctrine refer
to the
court not wanting to open the floodgates of litigation and the court's efforts to insure that those
who appear before a court are among those best able to articulate the issues because they have
the most intimate experience with the alleged agency problem. The most common test used
under most APAs is the injury in fact test. Where organizations seek standing, they will
generally be required to show that either the organization itself has been injured in fact or that
one of their members have and they represent that member. These approaches preclude
members of the public from showing standing when their claim is one that is likely to be shared
in common with most other members of the public. The person who is injured in fact must also
meet the tests of traceability (the injury can be directly traced to the agency in question) and
redressability (the identified agency can provide realistic relief to the injured parties.) Other
tests are also articulated in some cases, such as the test of being within the zone of the interests
that the statute in question sought to protect, or the legal interest test which grants standing
where the person can show the invasion of a legally protected interest. |
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Discretion
may be committed to agency decisionmaking under APAs like the federal one.
Where discretion is committed to the agency and there are no standards that the court can find
(no law to apply), then it becomes unreviewable. The organic statute of the agency may
contain an express preclusion, such as in the original version of some veterans benefits
legislation. Other statutes may include an implied preclusion of judicial review, often of a
limited nature but nonetheless sufficient to keep certain parties out of judicial review at least
during certain times. |
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1. Adjudication, Formal
