1. Welcome to PP600: Administrative Law Unit 7 Seminar All About Judicial Review Welcome to PP600: Administrative Law Unit 7 Seminar All About Judicial Review Professor Patricia Maitland, J.D., Ph.D. Copyright 2011

2. Recall the types of Political Oversight of Agencies One type was Constitutional oversight One type was Constitutional oversight Judicial Review Judicial Review Courts assume jurisdiction even when there is no statutory authorization (in the agency’s enabling act) for a judicial appeal. Courts assume jurisdiction even when there is no statutory authorization (in the agency’s enabling act) for a judicial appeal. There is an inherent right of appeal from orders of administrative agencies where constitutional rights are involved. There is an inherent right of appeal from orders of administrative agencies where constitutional rights are involved. Courts provide relief or review even though there is no statute which specifically provides for such relief or review. Courts provide relief or review even though there is no statute which specifically provides for such relief or review. Copyright 2011

3. A History Refresher 1802 John Marshall was Chief Justice of the U.S. Supreme Court 1802 John Marshall was Chief Justice of the U.S. Supreme Court Believed in a strong federal government Believed in a strong federal government Contrast to Jefferson who thought more power should be pushed out to the states Contrast to Jefferson who thought more power should be pushed out to the states “It is emphatically the province and the duty of the judicial department to say what the law is.” “It is emphatically the province and the duty of the judicial department to say what the law is.” Chief Justice John Marshall, Marbury v. Madison (1803) Copyright 2011

4. A History Refresher In an 1803 Supreme Court case, Marshall said the Court could throw out any law passed by Congress if the Court thought that law was unconstitutional Marbury v. Madison Copyright 2011

5. A History Refresher Thomas Jefferson thought judicial review made the court too powerful. Remember Supreme Court justices are appointed for life, not elected. Fun Fact: Fun Fact: The longest serving Justice was William O. Douglas who served for 36 years, 7 months, and 8 days from 1939 to 1975. Copyright 2011

6. A History Refresher Jefferson and Marshall disliked each other in the extreme Even though they were cousins! Their dispute was in regard to ideas So what was Marbury v. Madison all about? Copyright 2011

7. Marbury v. Madison In the Presidential election of 1800: In the Presidential election of 1800: Republican Thomas Jefferson defeated the incumbent Federalist John Adams. Republican Thomas Jefferson defeated the incumbent Federalist John Adams. The Republicans (forerunners of the Democratic Party) also took control of Congress The Republicans (forerunners of the Democratic Party) also took control of Congress But the “lame duck” Congress passed an amendment to the Judiciary Act, creating a lot of new judicial positions and filled them at the last minute with Federalist appointees. But the “lame duck” Congress passed an amendment to the Judiciary Act, creating a lot of new judicial positions and filled them at the last minute with Federalist appointees. William Marbury received one of the appointments to a minor judicial post in the new District of Columbia. William Marbury received one of the appointments to a minor judicial post in the new District of Columbia. His appointment was signed by President Adams but not delivered to Marbury. His appointment was signed by President Adams but not delivered to Marbury. The new Secretary of State, James Madison, also never delivered the appointment. The new Secretary of State, James Madison, also never delivered the appointment. Copyright 2011

8. Marbury v. Madison (cont.) Marbury sued Madison in the Supreme Court, asking the Court to issue a writ of mandamus ordering Madison to deliver the appointment document. Marbury sued Madison in the Supreme Court, asking the Court to issue a writ of mandamus ordering Madison to deliver the appointment document. The SC had a new federalist Chief Justice, John Marshall, who was also a new appointee. The SC had a new federalist Chief Justice, John Marshall, who was also a new appointee. Marshall did not recuse himself from the case. Marshall did not recuse himself from the case. Marshall feared that a writ would be ignored or defied, revealing the weakness of the SC and would have a negative impact on the legitimate authority of the courts. Marshall feared that a writ would be ignored or defied, revealing the weakness of the SC and would have a negative impact on the legitimate authority of the courts. Copyright 2011

9. Marbury v. Madison (cont.) Marshall’s opinion asked and answered the following: Marshall’s opinion asked and answered the following: Has the applicant a right to the commission? Has the applicant a right to the commission? Yes, it is being illegally withheld. Yes, it is being illegally withheld. Has the applicant a legal remedy for this wrong? Has the applicant a legal remedy for this wrong? Yes, a writ of mandamus can properly be directed against a public official who fails to carry out a ministerial duty. Yes, a writ of mandamus can properly be directed against a public official who fails to carry out a ministerial duty. Is the applicant entitled to the particular remedy for which he applies? Is the applicant entitled to the particular remedy for which he applies? No, the SC does not have the power to issue such a writ. No, the SC does not have the power to issue such a writ. Why didn’t the SC have the power to issue the writ since the Judiciary Act gave the SC that power? Why didn’t the SC have the power to issue the writ since the Judiciary Act gave the SC that power? Because the Judiciary Act was unconstitutional. Because the Judiciary Act was unconstitutional. Copyright 2011

10. Marbury v. Madison (cont.) Why was the Judiciary Act unconstitutional? Why was the Judiciary Act unconstitutional? By giving the SC itself the power to issue writs of mandamus Congress tried (unconstitutionally) to expand the SC’s original jurisdiction. By giving the SC itself the power to issue writs of mandamus Congress tried (unconstitutionally) to expand the SC’s original jurisdiction. So while Marbury had a valid grievance, he needed to pursue his remedy in a Federal District Court So while Marbury had a valid grievance, he needed to pursue his remedy in a Federal District Court Which he never did, and Marbury never received the appointment Which he never did, and Marbury never received the appointment Thus, the case forms the basis of judicial review Thus, the case forms the basis of judicial review Copyright 2011

11. Today, the portraits of Marbury and Madison are hung side by side in the Supreme Court’s Private Dining Room Copyright 2011 MarburyMadison

12. Judicial Review Administrative agencies are subject to the judicial review of the courts. Administrative agencies are subject to the judicial review of the courts. What is Judicial Review? What is Judicial Review? The courts’ ability to review a law or act of an agency for constitutionality. The courts’ ability to review a law or act of an agency for constitutionality. APA § 702 APA § 702 Copyright 2011

13. Justiciability Can the Court exercise its authority? Can the Court exercise its authority? Reviewability Reviewability Standing Standing Representational Standing Representational Standing Injury Injury Causation Causation Redressable Redressable Exhaustion Exhaustion Case in Controversy Case in Controversy Copyright 2011

14. Reviewability Authorization of the court to review the case Authorization of the court to review the case “federal question” (28 U.S.C. §1331) “federal question” (28 U.S.C. §1331) Complainants allege constitutional violations Complainants allege constitutional violations Statutory jurisdiction Statutory jurisdiction The APA does not necessarily grant, but presumes reviewability unless another statute has specified the manner in which jurisdiction is established The APA does not necessarily grant, but presumes reviewability unless another statute has specified the manner in which jurisdiction is established Copyright 2011

15. Standing The Party must have standing to sue The Party must have standing to sue The right to bring a suit or action before a court of justice The right to bring a suit or action before a court of justice Plaintiff must show Agency action has or will cause an injury to the Plaintiff that can be avoided or redressed by the court Plaintiff must show Agency action has or will cause an injury to the Plaintiff that can be avoided or redressed by the court Copyright 2011

16. Representational Standing Supreme Court recognizes Supreme Court recognizes Organization has a member who could bring the case (individual standing) Organization has a member who could bring the case (individual standing) Purpose of the organization is relevant to the suit Purpose of the organization is relevant to the suit The person actually injured is a party to the suit The person actually injured is a party to the suit Seeking declaratory or injunctive relief, not damages Seeking declaratory or injunctive relief, not damages Copyright 2011

17. Injury Injury Injury a concrete injury, not a general grievance. a concrete injury, not a general grievance. Risk Immediate, increased Immediate, increased Procedural Injury Categorical exemptions Categorical exemptions Copyright 2011

18. Types of Injuries Recreational Recreational Aesthetic Aesthetic Environmental Environmental Procedural Procedural Informational Informational Copyright 2011

19. Causation The allegedly unlawful action caused the injury The allegedly unlawful action caused the injury “fairly traceable” “fairly traceable” 3 rd Party actions 3 rd Party actions Example: Developer damming the river. Example: Developer damming the river. Copyright 2011

20. Redressable Party must show that a favorable decision by the court will redress or avoid the injury. Party must show that a favorable decision by the court will redress or avoid the injury. Generally causation and redressability Generally causation and redressability are linked. are linked. What about 3 rd Parties? What about 3 rd Parties? A beneficiary of health services for low- income persons files suit against the IRS for withdrawing a hospital’s tax-exempt status. A beneficiary of health services for low- income persons files suit against the IRS for withdrawing a hospital’s tax-exempt status. Copyright 2011

21. Exhaustion The Party must have exhausted all administrative remedies. The Party must have exhausted all administrative remedies. The party must also have raised the issue with the Agency The party must also have raised the issue with the Agency Finality Finality No review of preliminary or intermediate actions or rulings No review of preliminary or intermediate actions or rulings Consummation Consummation Rights and obligations determined Rights and obligations determined Copyright 2011

22. Case in Controversy There must be a case in controversy (Article lll, Section 2 of the Constitution) There must be a case in controversy (Article lll, Section 2 of the Constitution) A definite, concrete issue concerning legal relations among parties whose interests conflict A definite, concrete issue concerning legal relations among parties whose interests conflict Based on alleged facts Based on alleged facts Resulting in a decision granting Resulting in a decision granting specific relief specific relief Controversy Copyright 2011

23. Exceptions to Judicial Review Statutory Preclusion Statutory Preclusion If the Agency’s enabling act specifies an alternative. If the Agency’s enabling act specifies an alternative. Action committed to Agency discretion Action committed to Agency discretion Example: A CIA employee. Example: A CIA employee. Copyright 2011

24. Scope of Judicial Review Exceeded the scope of its enabling legislation? Exceeded the scope of its enabling legislation? Correctly interpreted the laws? Correctly interpreted the laws? Violated the U.S. Constitution? Violated the U.S. Constitution? Complied with all applicable procedural requirements? Complied with all applicable procedural requirements? Are actions arbitrary or capricious (abuse of discretion)? Are actions arbitrary or capricious (abuse of discretion)? Conclusions not supported by substantial evidence? Conclusions not supported by substantial evidence? Copyright 2011

25. Exceeded the Scope The Agency’s statute did not provide the authority to the Agency for a particular action. The Agency’s statute did not provide the authority to the Agency for a particular action. Agency Organic Statute Copyright 2011

26. Correct Interpretation The court may affirm, reverse or remand an agency order if it finds that the agency has erroneously interpreted a provision of law The court may affirm, reverse or remand an agency order if it finds that the agency has erroneously interpreted a provision of law Copyright 2011

27. Violated the Constitution Statutory construction is unconstitutional Statutory construction is unconstitutional Contrary to rights, powers, privileges or immunities Contrary to rights, powers, privileges or immunities Courts generally interpret the statutes so as to avoid constitutional questions Courts generally interpret the statutes so as to avoid constitutional questions Copyright 2011

28. Complied with Procedures Did not comply or apply the appropriate procedures. Did not comply or apply the appropriate procedures. Example: The Developer was issued a permit although the granting Agency did not coordinate with other agencies. Example: The Developer was issued a permit although the granting Agency did not coordinate with other agencies. Agency response is usually the procedures were not required. Agency response is usually the procedures were not required. Copyright 2011

29. Arbitrary or Capricious A finding of a lower court will not be disturbed unless it has no reasonable basis A finding of a lower court will not be disturbed unless it has no reasonable basis Copyright 2011

30. Substantial Evidence Questions of fact – Agency action must be supported by “relevant evidence that a reasonable mind might accept as adequate to support a conclusion”. Questions of fact – Agency action must be supported by “relevant evidence that a reasonable mind might accept as adequate to support a conclusion”. Generally when the Agency action is formal rulemaking or formal adjudication Generally when the Agency action is formal rulemaking or formal adjudication Some statutes (1970s) designate hybrid rulemaking is subject to this type of review Some statutes (1970s) designate hybrid rulemaking is subject to this type of review Copyright 2011

31. Abuse of Discretion A failure by the Agency to take into proper consideration the facts and law relating to a particular matter A failure by the Agency to take into proper consideration the facts and law relating to a particular matter An arbitrary or unreasonable departure from precedent and settled judicial custom An arbitrary or unreasonable departure from precedent and settled judicial custom Applicable to informal adjudications Applicable to informal adjudications The application of laws to facts in review The application of laws to facts in review The court does not substitute its judgment for the Agency’s The court does not substitute its judgment for the Agency’s Review is based on the record before the Agency at the time of its decision. Review is based on the record before the Agency at the time of its decision. Copyright 2011

32. The Chevron Two-Step (not the latest dance craze) Chevron, Inc. v. Natural Resources Defense Council Copyright 2011

33. The Chevron Two-Step Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 1984 case in which the U.S. Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. 1984 case in which the U.S. Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. Copyright 2011

34. In Chevron Congress amended the Clean Air Act in 1977 to address states that had failed to attain EPA established air quality standards Congress amended the Clean Air Act in 1977 to address states that had failed to attain EPA established air quality standards Required non-compliant States to establish a permit program regulating new or modified sources of air pollution. Required non-compliant States to establish a permit program regulating new or modified sources of air pollution. The Carter administration defined a source of air pollution one way, but in 1981, when Ronald Reagan was elected, the EPA adopted a new definition of a source of air pollution The Carter administration defined a source of air pollution one way, but in 1981, when Ronald Reagan was elected, the EPA adopted a new definition of a source of air pollution allowed facilities emitting pollution to get permits for non-compliant equipment. allowed facilities emitting pollution to get permits for non-compliant equipment. Copyright 2011

35. In Chevron The Natural Resources Defense Council, an environmental protection group, challenged the EPA regulation in federal court, which ruled in the NRDC’s favor. The Natural Resources Defense Council, an environmental protection group, challenged the EPA regulation in federal court, which ruled in the NRDC’s favor. Because Chevron wanted its permits, as an affected party, it appealed the lower court's decision. Because Chevron wanted its permits, as an affected party, it appealed the lower court's decision. Copyright 2011

36. The Chevron Two-Step Judicial Review of Agency interpretation of law Step 1: Is the statute ambiguous? Step 1: Is the statute ambiguous? Step 2: Is the Agency interpretation reasonable or permissible Step 2: Is the Agency interpretation reasonable or permissible Copyright 2011

37. That Concludes this Week’s Seminar Copyright 2011 Next Time: Governmental Immunity & Liability