Chapter 9.access to judicial review

1. Access to Judicial Review

2. 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.

3. 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.

4. 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

5. Process for judicial review

6. 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.

7. 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)

8. 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)

9. 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.”

10. 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

11. 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

12. 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)

13. 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.

14. Agency Discretion
 Heckler v. Chaney
 Citizens to Preserve Overton Park, Inc. v. Volpe

15. 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.

16. 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

17. 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)

18. 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?

19. 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.

20. 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.

21. 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.

22. 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.

23. 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

24. 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.

25. 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.

26. 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.