§1.6 Nature and Scope of De Novo Judicial Review

• Jurisdiction: United States
• Publication year: 2022

§1.6 Nature and Scope of De Novo Judicial Review

The concept of judicial review of administrative agency action differs from judicial review of an act or legislation of Congress. A judicial review of an act of Congress is directed to testing the validity or invalidity of legislation. A court decision may render an act of Congress or a state statute void because it is unconstitutional. A review of agency action is to question the method and review the administrative procedure an agency is utilizing in carrying out its functions and duties.

Congress, recognizing the need for review of agency actions, enacted the Administrative Procedure Act⁷⁵ (APA), which embodies the presumption of judicial review of agency actions. Under the APA, a person suffering a legal wrong because of agency action is entitled to judicial review of that agency action as long as the action is a final agency action and there is no adequate remedy.⁷⁶

It is not uncommon for acts of Congress to fail to provide for an appropriate standard of review for agency actions under a particular legislation. The courts have consistently held that where an act or statute precludes judicial review, it may assume jurisdiction and review agency actions. Thus, there is a strong presumption in favor of judicial review of administrative actions, and prohibitions against judicial review are always narrowly construed.⁷⁷ It is only upon a showing of clear and convincing evidence of a contrary legislative intent would the courts refuse review.⁷⁸ Therefore, where substantial doubts about the congressional intent exist, the general presumption favors administrative review. The standard of review of agency actions varies from agency to agency. This is because different agencies' duties, scope, and administrative procedures differ among the various governmental agencies. Applying the same standard of review to all government agencies may result in an unjust decision or judgment by a court of competent jurisdiction. It is important to note that an appropriate standard of review for an agency action may have been provided in that statute that established the agency. But where a standard of review has not been provided, some federal courts have adopted and used the "arbitrary and capricious" standard.⁷⁹ Other courts have adopted the de novo standard of review as an alternative standard of review.

There is presently no judicial decision that has expressly provided an encompassing meaning or scope for the term de novo...