Judicial Review of Agency Decisions

Question 1

For no agency interpretation

Answer 1

De Novo

Question 2

For agency interpretation of regulations

Answer 2

Auer Deference (Plainly Wrong)

Question 3

Auer Deference =

Answer 3

Judicial deference to agency interpretations of its own regulations, unless they are parroting an existing statute or are clearly erroneous

Question 3

Major Question Doctrine

Answer 3

When the issue is too important to believe that Congress implicitly delegated interpretive power to the agency, courts require a clear statement from Congress before deferring

Question 4

Force of Law Procedures =

Answer 4

When a person/entity is subject to legal action for failing to abide by it (formal rulemaking, informal rulemaking, and formal adjudication)

Question 5

Non-force of law procedures =

Answer 5

Interpretive rules, policy statements, informal adjudication, Q&A’s

Question 6

Agency interpretation for non-force of law procedures

Answer 6

Skidmore Analysis

Question 7

Skidmore Analysis =

Answer 7

Power to Persuade Test: agency interpretation is given deference based on its power to persuade as determined by these factors:

1. The agency consistently interprets the language over time
2. The agency thoroughly considered the issue
3. The agency offers sound reasoning to support the interpretation

Question 8

Agency interpretations for force of law procedures

Answer 8

Chevron Analysis

Question 9

Chevron Analysis =

Answer 9

1. Has Congress spoken to the precise issue before the court? De Novo Review
2. If no, is the agency interpretation reasonable enough to be permissible (because Congress must have intended to delegate to agencies so defer to agency)

Question 10

Brand X Doctrine =

Answer 10

A deference doctrine that requires courts to defer to reasonable agency interpretations of statutory language even when those interpretations are written subsequent to and conflict with prior judicial interpretations

Question 11

Exhaustion Doctrine =

Answer 11

All administrative remedies must be pursued and exhausted before the judicial review is available

Question 12

Pure Question of Law =

Answer 12

One in which resolution of the questions does not require knowledge of the facts

Question 13

Question of Law =

Answer 13

One in which resolution of the questions requires application of the law to the specific, adjudicative facts of a case

Question 14

Question of Fact =

Answer 14

One in which resolution of the question does not require the decisionmaker to know or apply he law to the specific situation

Question 15

Question of Policy =

Answer 15

One in which resolution of the questions requires application of the law to the legislative facts

Question 16

For factual decisions made during informal rulemaking/adjudication

Answer 16

Arbitrary & Capricious Review

Question 17

Arbitrary & Capricious Review =

Answer 17

Determines whether agency findings were based on consideration of irrelevant factors or whether agency made a clear error of judgement

Question 18

For factual decisions made during formal rulemaking & adjudications

Answer 18

Substantial Evidence Review

Question 19

Substantial Evidence Review =

Answer 19

Determines whether the records contains such evidence as a reasonable mind might accept as adequate to support a conclusion

Question 20

Limitations on Chevron Applicability

Answer 20

1. Agency only interpreted statutory language
2. Agency only interpreted an act they administer
3. Agency only interpreted using force of law procedures
4. Resolution of the issue does not involve a Major Question

Question 21

For Pure Questions of Law

Answer 21

De Novo Review