decision on other grounds very cautious. Should if the reasons given are probably only apply in an inadequate, as the court exceptional circumstance espoused in SEC v Chenery. where the ALJ at least However, there is some considered the material but conflict with the reasons just not properly and no requirement and the reasonable admin. Fact finder harmless error principle. could have resolved the factual matter in any other way Reviewing Agency Hard look review: The Ethyl Corp v EPA: Judge Bazlelon: courts should decisions public was concerned with ensure that agency agency capture and the procedures give a full airing insufficiency of safeguards of the issues in order to presented by notice & ensure good substantive comment, and the court decisions. This is particularly responded by imposing true because of technical additional procedures on matters espoused. the agency that were not required by the statute. Judge Leventhal: hard look However, the court approach means that the reversed this approach and court must examine closely rejected the assumption the decision of the agency and that more procedures must affirm if decision is would produce a better rational even if we would decision in Vermont have decided otherwise yankee. Reviewing Agencies Vermont Yankee Courts have no authority to (1978) order procedures beyond those required by statute or due process. Judicial Review- Substantial Evidence Universal Camera Substantial evidence is more Substantial Evidence applies to formal Corp. v NLRB than a mere scintilla and is rulemaking and formal such evidence as a adjudication. Thus, under reasonable mind might accept the APA, any time § 556 or as adequate to support a 557 are applicable. conclusion. However, the organic statute may also require substantial evidence application. Judicial Review- While substantial evidence Center Construction Testimonial inference: based substantial evidence standard is applied to facts, Co. v NLRB: finding on the witness’ demeanor parties challenging agency that the agency’s such as voice fluctuation, long findings cannot simply decision was not pauses, nervousness etc. argue the facts. Rather, based on substantial effective challenges under evidence because Derivative inference: based the substantial evidence witness testified in on other aspects of witness standard usually identify front of the ALJ and testimony, such as internal particular gaps or flaws in the findings turned inconsistencies in the the agency explanations. mostly on witness substance of the testimony. One potential flaw is when credibility (dissent in this case believes
decision on other grounds if the reasons given are inadequate, as the court espoused in SEC v Chenery. However, there is some conflict with the reasons requirement and the harmless error principle. very cautious. Should probably only apply in an exceptional circumstance where the ALJ at least considered the material but just not properly and no reasonable admin. Fact finder could have resolved the factual matter in any other way Reviewing Agency decisions Hard look review: The public was concerned with agency capture and the insufficiency of safeguards presented by notice & comment, and the court responded by imposing additional procedures on the agency that were not required by the statute. However, the court reversed this approach and rejected the assumption that more procedures would produce a better decision in Vermont yankee. Ethyl Corp v EPA: Judge Bazlelon: courts should ensure that agency procedures give a full airing of the issues in order to ensure good substantive decisions. This is particularly true because of technical matters espoused. Judge Leventhal: hard look approach means that the court must examine closely the decision of the agency and must affirm if decision is rational even if we would have decided otherwise Reviewing Agencies Vermont Yankee (1978) Courts have no authority to order procedures beyond those required by statute or due process. Judicial Review- Substantial Evidence Substantial Evidence applies to formal rulemaking and formal adjudication. Thus, under the APA, any time § 556 or 557 are applicable. However, the organic statute may also require substantial evidence application. Universal Camera Corp. v NLRB Substantial evidence is more than a mere scintilla and is such evidence as a reasonable mind might accept as adequate to support a conclusion. Judicial Review- substantial evidence While substantial evidence standard is applied to facts, parties challenging agency findings cannot simply the facts. Rather, effective challenges under the substantial evidence standard usually identify particular gaps or flaws in the agency explanations. One potential flaw is when Center Construction Co. v NLRB: finding that the agency’s decision was not based on substantial evidence because witness testified in front of the ALJ and the findings turned mostly on witness credibility Testimonial inference: based on the witness’ demeanor such as voice fluctuation, long pauses, nervousness etc. Derivative inference: based on other aspects of witness testimony, such as internal inconsistencies in the substance of the testimony. (dissent in this case believes argue
Administrative%20Law%20-%20Glicksman%20-%20Fall%202010.docx