Judicial Review

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Judicial Review
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Key Questions

• When and why should the courts defer to the
  agency's decision?
• What can the court do when it rejects the
  agency's decision?
• Federal v. state
• What is the proper standard of review for agency
  actions?
• What is the law versus fact distinction?

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What is the Court Reviewing? - The Agency Record

• The agency develops a written record of the
  proceedings before it
• This is like a trial transcript in that once it
  is completed, it cannot be supplemented on
  judicial review
• The courts review agency actions as they would
  trial court rulings, unless it is de novo review
• In most cases rejecting an agency's decision or
  action, the court remands for that the agency can
  cure the record
• This means going back and supplying the missing
  evidence

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Types of Judicial Review of Agency Fact Finding

• Congress is free to set the standards of review
  for agency fact finding
• If Congress does not set a standard, then the
  default is provided by the APA

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Trial De Novo

• You start over at the trial court
• Agency findings can be used as evidence, but
  there is no deference to the agency
• FOIA
• Used more by the states than the feds

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Independent Judgment on the Evidence

• Decide on the agency record, but do not defer to
  the agency's interpretation of the record
• Sort of like appeals in LA

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Clearly Erroneous

• Definite and firm conviction that a mistake has
  been made on the facts or policy
• Same as reviewing a verdict by a trial judge
  without a jury

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Substantial Evidence - Formal Adjudications and
Rulemaking

• Formal proceedings are rare
• Could a reasonable person have reached the same
  conclusion?
• Standard for reviewing a jury verdict or for
  taking a case from the jury
• 706(2)(E) - only applies to formal adjudications
  and formal rulemaking
• Should a jury get more or less deference than an
  agency?

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Substantial Evidence - Informal Adjudications and
Rulemaking

• Almost everything is informal
• 706(2)(A)
• Arbitrary and capricious or abuse of discretion
• Same assessment of reasonableness as 706(2)(E),
  so the result is about the same as the
  substantial evidence test used for formal
  proceedings

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Some Evidence

• Scintilla test
• The agency needs to show even less than in the
  substantial evidence standard
• Only limited use

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Facts Not Reviewable At All

• Congress can prevent certain types of judicial
  review
• Compensation decisions under the Smallpox Vaccine
  Compensation Act are not reviewable
• Enabling law is always reviewable unless Congress
  has taken away the court's subject matter
  jurisdiction

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Labor Politics

• What is the history of labor unions?
• Coal mines
• Steel
• Why would Congress want to encourage labor unions
  in 1935?
• Why were unions unpopular with industry?

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National Labor Relations Board (NLRB)

• Created by the Wagner Act of 1935
• Classic New Deal agency
• Modified by the Taft-Hartley Act and other laws
• Structured to encourage unions
• Independent agency run by a commission
• Presidents can only replace commissioners as
  their term expire
• This means that the commission is often out of
  step with the current administrative

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How has the Role of Unions Changed?

• Why happened in the 1960s and 1970s to discredit
  labor unions?
• What happened to core unionized industries?
• What is the effect of global competition?
• What is the only remaining stronghold of unions?
• Why?
• What political issues may strengthen unions?

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Effect of Politics on the NLRB

• Congress is not supportive of the NLRB's original
  mission
• Most of the workforce is not unionized
• Congress has not changed the statutory
  presumptions underlying the NLRB
• Union/Management relations are very political
• Thus NLRB decisions are very political
• The NLRB does not like to make clear rules that
  Congress might change

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Universal Camera Corp. v. NLRB, 340 US 474 (1951)

• Employer fires chairman after he testified at an
  NLRB meeting
• What did the hearing officer do?
• Believed the company and did not reinstate him
• What did the NLRB do?
• NLRB rejects the hearing officer's finding
• Reinstated the chairman with back pay

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What is the key legal issue before the court?

• Should the court reviewing the NLRB's action
  consider the hearing officer's recommendation?
• Is the agency bound by the hearing examiner's
  opinion?
• Should the court look only to the part of the
  record that the agency relies on for their
  decision or the record as a whole?
• Court says you have to look at the whole record,
  including the ALJ's findings

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When Are the ALJ's Findings Most Persuasive?

• What type of rulings by an ALJ carry the most
  weight with the court when there is conflict
  between the ALJ and the agency?
• How should the agency handle such conflicts in
  the record?

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Deference to Agency Factfinding

• Why should the courts defer to agency
  factfinding?
• How does the expertise of the ALJ and agency
  decisionmakers differ from the judges?
• What about the practical concerns?
• How about the LA problem of final decisions being
  made by non-expert ALJs?

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Allentown Mack v NLRB, 522 US 359 (1998)

• Recertification election politics
• Why create a presumption against letting
  employers force recertification elections?
• What are the pressures on employees when a union
  is seeking a certification election?
• What were the facts that the NLRB was reviewing?

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Standard of Proof

• Did the NLRB say that it had a presumption
  against recertification elections and thus
  required a high standard of proof for employers
  contesting elections?
• What was the practical effect of its factfinding?
• Why did this lead the majority to reject its
  ruling and remand for further review by the
  agency?
• Why does the dissent say this is a problem for
  agency factfinding?

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Burdens

• Burden of Persuasion
• Always stays with the person who loses if that
  issue is found against them
• Burden of Production
• Shifts once the other side has put on evidence of
  their prima facie case
• While the APA is not clear on this, the courts
  have held that persons challenging agency actions
  retain both burdens

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Zhen Li Iao v. Gonzales, 400 F3rd 530 (2005)

• What is the regulatory conflict for immigration
  judges?
• How many people in China follow Falun Gong
• What is the implication if the court finds that
  they all have a reasonable fear of persecution?
• Is this what Congress and the Administration
  want?
• What did this immigration judge rule?

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Reviewing Policy in the Guise of Facts

• What did Posner think the judge should have done?
  
• What sort of factors did Posner want considered?
• In another case Posner found that delay alone was
  enough to let the alien stay
• Is this the fault of the agency or does it
  reflect a Congressional policy?
• Should the courts use judicial review to
  challenge Congressional policy?

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Questions of Law

• Should a Court Defer to an Agency's
  Interpretation of Law?
• Why?
• How should the courts treat the agency's legal
  interpretations?

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Ratemaking Cases

• Very controversial in the early days
• Seen as a constitutional fact problem
• Did the rate confiscate the regulated party's
  property?
• No longer controversial
• The courts almost always defer to the ratemaking
  agency unless it is acting unlawfully

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U.S. v. Fifty-Three Eclectus Parrots, 685 F2d
1131 (1982)

• Is the determination of whether a parrot species
  is wild a factual or a legal decision?
• Since there was a statutory definition of wild,
  and the defendant could not rebut its
  application, the court found that this was a
  legal question
• Why are mixed law and fact questions subject to
  manipulation by the courts?

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Skidmore v. Swift Co., 323 U.S. 134 (1944)

• We consider that the rulings, interpretations and
  opinions of the Administrator under this Act,
  while not controlling upon the courts by reason
  of their authority, do constitute a body of
  experience and informed judgment to which courts
  and litigants may properly resort for guidance.
  The weight of such a judgment in a particular
  case will depend upon the thoroughness evident in
  its consideration, the validity of its reasoning,
  its consistency with earlier and later
  pronouncements, and all those factors which give
  it power to persuade, if lacking power to control.

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Next Stop - Chevron