Judicial Review Flashcards
\What is the rule of prejudicial error?
In judicial review, if the error reviewed was not prejudicial, then no harm no foul.
What two substantive issues do agencies make when promulgating a rule (and which are reviewable)?
1) On the basis of evidence available to the agency, what are the relevant facts.
2) What type of rule, if any, is appropriate in light those facts/what is the regulatory option that will best further the statutory mandate.
What is the Chevron test and when does it apply?
Applies to an agency rule interpreting its enabling statute.
1) The court reviews the enabling statute to determine whether Congress has directly spoken to the precise question at issue.
2) If ambiguous, the agency’s interpretation is upheld if it is permissible or reasonable (not arbitrary and capricious).
What is the process for interpretation in Chevron step 1?
Canons of statutory construction > Legislative history.
What is the major questions doctrine?
For certain economically and politically significant assertions of statutory authority, there must be more than a “merely plausible textual basis” for the asserted authority—there must be clear congressional authorization.
When does major questions doctrine apply?
Where an agency’s asserted authority:
1) Would constitute a radical or fundamental change to a statutory scheme.
2) Would depart significantly from the history and breadth of authority the agency has asserted in the past.
3) Results in a rule with economic and political significance.
What are the plain meaning, statutory construction, and purposivist approaches to Chevron step 1?
1) Textualists ask how a “skilled, objectively reasonable user of words” would have understood the text, int eh circumstances in which it was ordered. Look to particular language and the language/design of the statute as a whole.
2) Court applies canons to language of statute, as well as the law as a whole, including its object and policy. Most circuits allow canons at step one.
3) How would “reasonable persons pursuing reasonable purposes reasonably resolve” the issue addressed by the language?
What was the holding of Brand X?
A prior judicial construction of a statute only trumps an agency construction otherwise entitled to deference if the judicial construction follows from the unambiguous terms of the statute. Agencies can change their minds at step two.
Describe the substantial evidence standard under ConEd v NLRB.
The court must uphold a rule if it finds the agency’s decision to be “reasonable,” or the record contains “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Describe the arbitrary and capricious standard.
The court must consider “whether the decision was based on a consideration of relevant factors and whether there has been a clear error of judgment.” Overton Park
Must courts review the whole record when determining whether to affirm a rule?
Yes. 706
What comprises the record in formal and informal rulemaking?
Formal: evidentiary record; testimony and documents.
Informal: Information the agency actually considered in making the decision; FR notices for the proposed and final rule; comments; studies and data.
What is the “adequate explanation” standard for arbitrary and capriciousness?
Did the agency “articulate a satisfactory explanation for its actions including a ‘rational connection between the facts found and choices made’”?
Relevant factors:
1) Is scientific expertise involved?
2) Is it merely political? A change in administration is not a sufficient justification for a change in policy. MVMA v. State Farm
3) What are the economic and social impacts of the rule? Bigger impacts = more scrutiny.
What if the agency has not provided adequate explanation for its action, but the court can discern adequate explanation from the record?
Court should still remand. Chenery
In formal adjudication, what evidence does the substantial evidence test apply to?
All evidence on both sides of the record; even evidence contradicting the agency’s decision. Also includes ALJ’s decision, which is given “particular weight” re credibility. Universal Camera Corp.
What is the difference between basic and ultimate fact?
Basic facts are plain facts, while ultimate facts are final conclusions of law as applied to facts.
What are the two types of inferences an ALJ can make in credibility determinations, and how much deference are they given?
1) Testimonial inferences/witness demeanor: more deference.
2) Derivative inferences/substance of testimony: little to no deference.
How do courts deal with mixed questions of fact or law?
1) First, the court determines whether the facts found by the agency have a “warrant in the record.” Second, the court reviews the agency’s explanation for its decision to decide whether it has a “reasonable basis in law” (the goals and purposes of the enabling statute). Hearst.
2) The court asks whether there is substantial evidence in the record to support findings of both law and fact. Still a similar inquiry to Hearst. O’Leary
What is the standard of review for informal adjudication?
Arbitrary and capricious review/adequate explanation. “Substantial inquiry” based on the record before agency when it made its decision. Overton Park.
What is the remedy for an arbitrary and capricious decision in informal adjudication?
Remand to the agency to prepare an explanation. Not testimony in court.
What was the three-step process for arbitrary and capricious review from Overton Park?
1) Did agency act within scope of its statutory authority?
2) Was decision arbitrary and capricious? Narrow inquiry.
3) Did the secretary follow the necessary procedures?
When does Skidmore deference apply?
Opinion letters. Christensen
When Congress gives an agency power to make rulings (tariff classifications) but it doesn’t seem like Congress meant for those rulings to have the force of law. Mead
