Judicial Review of Agency Adjudications

Question 1

PRECONDITIONS TO REVIEW

What are the Preconditions to Judicial Review of Administrative Adjudications?

Answer 1

Preconditions to Judicial Review of Administrative Adjudications:

In order to seek review of an administrative adjudication, the following requirements must be met:

1. Standing:
   The party seeking review must have standing to seek judicial review. In a review of an agency adjudication, the following persons or entities have
   standing:

(i) the PARTY AGAINST WHOM the AGENCY ACTION was BROUGHT (i.e., the party seeking review has been adversely affected by a decision); and;

2. Exhaustion of Administrative Remedies/Finality:
   The agency has rendered a final decision and the petitioner has exhausted all available administrative
   remedies.

Question 2

What are the GROUNDS FOR BRINGING AN ARTICLE 78 PROCEEDING?

Answer 2

Grounds for Bringing an Article 78 Proceeding:

The appropriate method of obtaining review is to commence an Article 78 proceeding. The grounds for the proceeding are:

1. the agency failed to perform a duty required by law;
2. the agency is proceeding without or in excess of its jurisdiction;
3. a petitioner is seeking review of a determination on the grounds that the determination:
   (i) was made in violation of lawful procedure;
   (ii) was affected by an error of law
   (iii) was arbitrary or capricious; or
   (iv) was an abuse of discretion
4. the petitioner is seeking review of a determination made after a hearing (where the evidence was taken) on the grounds that the determination is not supported by substantial evidence.
   ———————————————————————————
   NOTE:

The third ground (above) is appropriate when the challenge to the agency determination is not based on the sufficiency of evidence at the hearing but rather on a legal issue, such as where the sole ground for the proceeding is that the agency incorrectly interpreted a statute or rule.

The fourth ground (above) is appropriate when the challenge to the agency determination is that it was not based on substantial evidence. This ground is the principal vehicle for challenging an agency adjudication.

Question 3

STATUTE OF LIMITATIONS FOR ARTICLE 78 PROCEEDINGS

Answer 3

Statute of Limitations

Most Article 78 proceedings must be commenced within 4 MONTHS after an agency determination is final and binding on a petitioner.

Commencement is by FILING the petition.

The petition, accompanied by a notice of petition or an order to show cause, must be served within 15 days after the statute of limitations is scheduled to expire.

Question 4

WHAT ARE the 6 IMPORTANT ASPECTS OF ARTICLE 78 PROCEEDINGS?

Answer 4

Article 78 proceedings are “special proceedings.” A special proceeding is a streamlined form of an action outlined in Article 4 of CPLR. A special proceeding is more like a motion than a full-fledged action.

6 IMPORTANT ISSUES ARE:

1. PAPERS
2. SERVICE OF PAPERS
3. HEARING AND EVIDENCE
4. STANDARD OF REVIEW
5. COURT
6. JUDGEMENT

Question 5

WHAT PAPERS ARE SERVED IN AN ARTICLE 78 PROCEEDING?

Answer 5

Papers. Generally, the following papers are served:

(i) VERIFIED PETITION BY PETITIONER (typically by the person adversely affected by the agency adjudication), accompanied by affidavits or other written proof;
(ii) VERIFIED ANSWER BY RESPONDANT (typically by the agency), stating pertinent and material facts showing the grounds of respondent’s action, including a CERTIFIED TRANSCRIPT of the PROCEEDINGs BELOW; and
(iii) a reply, when a counterclaim is alleged or “when there is new matter in the answer or when the accuracy of proceedings annexed to the answer is disputed.”

Question 6

HOW ARE PAPERS SERVED IN AN ARTICLE 78 PROCEEDING?

Answer 6

Service of Papers:

FOR The notice of petition…
petition and accompanying affidavits must be served AT LEAST 20 DAYS BEFORE the time at which the PETITION IS NOTICED to be heard UNLESS the court orders otherwise.

FOR The answer and supporting affidavits…
at least 5 DAYS BEFORE the RETURN DATE OF THE PETITION.

FOR The reply…
at least 1 DAY BEFORE THE RETURN OF THE PETITION.

Question 7

WHAT ARE THE HEARING and EVIDENCE PROCEDURES IN AN ARTICLE 78 PROCEEDING?

Answer 7

Hearing:

Generally, an Article 78 proceeding is determined on the papers filed with the court.

Evidence:
Although Article 78 provides for limited discovery and for trials of fact, this typically happens when the petitioner is challenging an agency action for which an administrative record was not required.

Thus, DISCOVERY AND TRIALS USUALLY DO NOT TAKE PLACE in Article 78 proceedings challenging an agency adjudication conducted pursuant to SAPA.

Question 8

WHAT IS THE STANDARD OF REVIEW IN AN ARTICLE 78 PROCEEDING?

Answer 8

Standard of Review:

If an agency adjudication is challenged on the grounds that the agency’s determination was not based on substantial evidence, the FINDING WILL BE UPHELD IF there is sufficient RELEVANT PROOF that a reasonable mind could find is adequate to support the conclusion.

The conclusion need only be reasonable and plausible, not necessarily the most probable!

Question 9

IN WHAT COURT IS AN ARTICLE 78 PROCEEDING HELD?

Answer 9

The case should be commenced in the SUPREME COURT.

If a substantial evidence question is not raised (unlikely) then the entire proceeding is resolved by the SUPREME COURT.

If a substantial evidence question is raised, then the Supreme Court must first dispose of questions that could terminate the proceeding (lack of jurisdiction; statute of limitations; res judicata) without reaching the substantial evidence issue.

If the other objections do not terminate the proceeding, then it must be transferred to the APPELLATE DIVISION.

Question 10

WHAT JUDGMENT MAY BE ENTERED IN AN ARTICLE 78 PROCEEDING?

Answer 10

Judgment:
The court may annul, confirm, or modify the agency determination or it may remand the proceedings to the agency for reconsideration or further proceedings.