Access to Judicial Review

What is Judicial Review?

Judicial review is the power of the courts to examine and review agency decisions based on the rules, regulations, and orders of an administrative agency.

People and entities seek judicial review to obtain a remedy from an agency decision if they feel they have been injured.

What is judicial review?

Before seeking judicial review, the party must complete any appeal process with the agency, allowing the agency the opportunity to correct itself.

Only available after all agency remedies and all agency processes have been completed.

What is a remedy? A remedy is the enforcement of the rights of a person

or entity and the prevention of the violation of those rights

May include:Compensation

Injunctive relief

Process for judicial review

Access to Judicial Review

Judicial review is not automatically available to everyone displeased with an agency decision

Standards and requirements established by laws and precedents govern access to judicial review of an agency decision.

The Power of the Courts to Review Courts are granted the power and authority to

review administrative agency decisions by: The statute created the agency provides for judicial

review The federal and state constitutions or the federal and

state general statutes provide for judicial review

To be accepted for judicial review, the appeal must follow the procedures and methods designated in the statute (place, time-limit)

Barriers to Judicial Review The statute does not provide for judicial review;

therefore, it is considered “silent.” The parties must seek other established legal

precedents in order to appeal an agency decision. In Stark v. Wickard (1944), the U.S. Supreme Court

stated, “it is not to be lightly assumed that the silence of the statute bars from the courts an otherwise justiciable issue…Here, there is no forum, other than the ordinary courts, to hear this complaint.” (constitutional presumption of review)

Barriers to Judicial Review General Statutory Review – Administrative Procedures Act

(APA) Section 702 of the APA gives the right to review “to a

person suffering legal wrong because of an agency action.”

Section 704 provides that “agency action made reviewable by statute and final agency action for which there is not other adequate remedy in a court are subject to judicial review”

Section 706 proves, “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of an agency action.”

Barriers to Judicial Review

Denial of power to review agency decisions The statute precludes (forbids) judicial review Agency discretion prevents judicial review

In these instances, courts are prohibited from examining agency decisions

Types of Preclusions Express preclusion – The intent of the statutes is

to preclude judicial review and the statutes distinctly states this. Generally upheld by courts.

Implied preclusion – rarely upheld; the exception being labor relations cases

Types of Preclusions

McNairy v. Haitian Refugee Center, Inc. (1991) Non-US citizen farmworkers filed class action

protesting program that denied right to seek judicial review if denied legal permanent status.

Court upheld express preclusion on individual basis, as provided in statute, even though granted class action judicial review. (there were constitutional/statutory issues)

Agency Discretion

Discretion is part of agency authority. Power vested by legislature, as best way to serve citizenry.

But, discretion must have its foundation in reason and rationality.

If discretion is abused, or a constitutional right is violated, judicial review will be granted.

Agency Discretion

Heckler v. Chaney Citizens to Preserve Overton Park, Inc. v. Volpe

Shaughnessy v. Pedreiro (1954) Facts: illegal immigrant forced to be deported

brought action for injunctive relief because he was being forced to attend the INS main office to have his deportation hearing.

Holding: There is a right of judicial review of deportation orders other than by habeas corpus and that the remedy sought here is an appropriate one. Requiring the head of INS to hear matter was inappropriate.

Judicial Review Procedures Procedures are methods or processes

necessary to follow in order for a case to be heard

Procedures are: Standing Ripeness Exhaustion Primary jurisdiction

Standing

Standing requires that the party questioning the legality of the agency action have a personal interest, and an injury associated with the agency decision Personal interest – shown by the party being

affected by the decision Injury – demonstrated by a harm (ex. Economic)

Standing

To establish a prima facie case: Did the party suffer actual harm? Are the interests stated within the area protected

by constitution or statute? Will the harm be redressed by a favorable opinion?

Branton v. FCC Branton brought action seeking judicial review of

agency decision denying his complaint regarding an offensive broadcast.

Court held petitioner failed to establish a justiciable case or controversy because his asserted injury is too attenuated and improbable and because this injury neither resulted from the challenged government decision nor would be remedied by a reversal of that decision.

Ripeness

Ripeness determines if the controversy has matured enough to permit judicial review.

The hardship must be actual and real, not abstract.

Hypothetical possibilities will not be accepted by the courts.

Exhaustion

Exhaustion requires that a party use all administrative processes and remedies before seeking judicial review in court.

Basically, want to ensure there is no premature intrusion by the court into an administrative agency function.

Primary jurisdiction

Primary jurisdiction is the concept that the court will refrain from acting on a case brought before it until the agency renders decision on issues requiring its expertise.

Scope of judicial review

The scope of review is the range and limits to which court examination of an agency decision is bound. Affected by agency expertise and the court calendar

Limitations on scope of review Agency record – usually restricted to agency record

because the review is an appellate proceeding. Court cannot review evidence until the agency has exercised its authority in hearing the evidence.

Issues raised – court will not hear any issue (matter in controversy) that was not presented before the agency.

Reason for agency decisions – review is limited to reason on which agency states it based its decision.

Law/Fact standards in scope of review Role of the court is to interpret the law and the

agency’s role is to determine the facts. Court reviews whether the agency abused its

discretionary powers by not upholding the arbitrary and capricious standards.

Courts use the standard of substantial evidence and reasonableness in reviewing agency decisions.

Exception to scope of review

De Novo Review – the power of the court to hear new evidence.

Case is tried as though no agency action took place.

Usually done by statute.