An outcomes analysis of scope of review standards.

AuthorVerkuil, Paul R.
PositionUS Supreme Court

TABLE OF CONTENTS INTRODUCTION I. SCOPE OF REVIEW A. The Art of Scope of Review B. The Administrative Procedure Act as a Guide C. Congressionally Defined Scope of Review Standards D. Unpredictability of Reversal Rates II. THE SUPREME COURT BELIEVES THESE WORDS MATTER A. Contrasting the Outcome Effect of Standards of Proof B. Standards of Proof and Scope of Review Compared C. Scope of Review in Other Settings III. SCOPE OF REVIEW IN CONTEXT: SOCIAL SECURITY DISABILITY, VETERANS DISABILITY, AND THE FREEDOM OF INFORMATION ACT A. Social Security Administration Disability Cases B. Veterans Disability Claims C. Freedom of Information Act Cases 1. The Special Case of Exemption 1 2. Judicial Views About Freedom of Information Act 3. Comparison to Reverse-Freedom of Information Act Cases D. Summary IV. JUDICIAL REVIEW OF SENTENCING DECISIONS V. LESSONS IN SCOPE OF REVIEW FOR THE SUPREME COURT AND CONGRESS A. Reassessing Social Security Administration Disability Review 1. The Supreme Court's Role: Tinkering with the Substantial Evidence Test 2. The Role of Congress: Changing the Structure of Review 3. Role of the Agency: Managing, Not Dictating, Outcomes B. Reassessing Freedom of Information Act Review 1. The Supreme Court's Role in Setting the Tone 2. Congressional Alternatives 3. Role of Agencies and the Department of Justice in Freedom of Information Act Review CONCLUSION APPENDIX A APPENDIX B Under existing standards, then, the courts may narrow their review to satisfy the demands for administrative discretion, and they may broaden it close to the point of substituting their judgment for that of the administrative agency. (1)

After fifty years ... we have yet to agree on how this review should operate in practice. We are still struggling with where to draw the line between obsequious deference and intrusive scrutiny. (2)

INTRODUCTION

The purpose of calibrating the breadth--or scope--of judicial review over fact finding by administrative agencies is ultimately to allocate decision-making responsibility between the executive and judicial branches. Because Congress usually makes these decisions, all three branches have a stake in the process. In assigning oversight responsibilities, Congress makes a choice: it weighs the desire for efficient and timely agency action against the need to ensure consistent and fair decision making. In balancing these considerations, Congress intends factual support for agency decisions to be subject to varying levels of scrutiny or, on occasion, to be free from scrutiny. (3) Straightforward enough, one would think. Yet, as the introductory quotes suggest, after all these years, reviewing judges are still struggling to make sense of these standards, especially as they apply to scope of review of facts or of law and policy. (4)

  1. SCOPE OF REVIEW

    It is doubtful that Congress wants scope of review to be an irrelevant labeling exercise. Instead, one might reasonably expect that Congress wants outcomes, defined in terms of affirmances, remands, and reversals of agency actions, to vary according to the scope of review standard chosen (or at least to find some judicial recognition of these expectations). But it seems the outcomes question is rarely asked and its premise remains unexamined.

    To explore the relationship of outcomes to standards, this Article makes a preliminary attempt to measure outcomes against the relevant scope of review provisions. This "outcomes analysis" produces some intriguing correlations between results and formulas, along with some surprises that themselves serve to raise more questions. Although such an exercise can never produce total agreement about how scope of review standards should operate, it facilitates a better understanding of why Congress differentiates among these standards and why the lesson sometimes is lost on the courts.

    1. The Art of Scope of Review

      Think of the word "scope" in "scope of review" as a contraction of "telescope." Like a telescope, scope of review offers either a narrow aperture to limit the breadth of judicial scrutiny, thereby increasing the area of agency discretion, or a wider lens to expand judicial oversight, thereby decreasing agency discretion. Once Congress supplies the lens, (5) the courts and agencies must try to bring Congress' intended level of judicial scrutiny into focus. This exercise inevitably produces margins that are fuzzy and obscure. After all, the object being observed is not easy to contemplate: instead of viewing a beautiful sunset, the judge's eyes are cast upon a mind-numbing pile of documents.

      Moreover, unlike, say, a National Football League official utilizing "instant replay" to review a play challenged on the field, the reviewing judge is looking at an event that occurred years earlier which has few clear guideposts. When "field judges" are told by the National Football League not to reverse a play unless the call is "clearly wrong," the process might be expected to generate a fairly predictable reversal rate. (6) But even in the limited world of sports not all calls are automatic. In baseball, for example, umpires regularly make controversial calls with far less consistency than one might imagine. (7) Few reviewing functions, it seems, are routine, automatic, or bland. (8)

      Unlike the field judge, the appellate judge does not get freeze frames of the action below. And, unlike the field judge and the umpire, (9) the appellate judge does not get to view the same situation over and over again. Instead, he or she is presented with a constantly changing stack of papers that help advocates reconstruct the action below. Depending on the type of agency action under review, this record may be formal and contain a written decision with transcripts, exhibits, briefs, and other submissions, or it may be informal, and contain things like letters or notations rejecting a request or imposing obligations. In most circumstances, the appellate judge lacks a clear view of the action below.

      Once the court receives the agency record and hears arguments, it must apply the relevant scope of review standard. But scope is one dimension, intensity another. Although Congress usually establishes scope, the Supreme Court traditionally determines how close or hard the courts must look in a given situation. The Court's directions are often complicated and sometimes inconsistent. For example, one well-known formulation combines a "narrow" scope of review standard with a "searching" inquiry. (10) And sometimes the Court infuses the arbitrary and capricious standard with a "hard look" requirement. (11)

      These instructions test a reviewer's mental and visual dexterity. The judge must be an omniscient observer but not an omnivorous decision maker. In effect, the reviewer often must see, but yet suspend judgment. (12) This tension forces a judge to live in a dual reality, not unlike what jurors must do when a trial judge instructs them to disregard what they have seen or heard. (13) Presumably reviewing judges are more adept at this task than jurors, but it still requires a talent for the interpretative role. This is one reason why judicial review is more art than science.

    2. The Administrative Procedure Act as a Guide

      Mental balancing acts for reviewing judges come with the territory. In draining the Administrative Procedure Act (APA) scope of review provisions Congress sought to bring order to the oversight function. (14) In Universal Camera Corp. v. NLRB, (15) the Court struggled to infuse the APA's substantial evidence test with predictive powers. Justice Frankfurter instructed the circuit courts uniformly to consider the fact finding role of the hearing examiner, (16) but he remained skeptical of judges' ability to carry out this instruction. Judges, he memorably warned, were not "automata." (17) In effect, he discounted in advance the probability that instructions on scope of review, even instructions sent twice to the best circuit in the land, would yield consistent results.

      Scope of review remains unpredictable and contentious. Consider the recent decision in Easley v. Cromartie, (18) in which the Supreme Court split five-to-four regarding the meaning and application of the clearly erroneous standard. (19) Because clearly erroneous is an even more familiar standard than substantial evidence, one wonders how the Justices can divide so evenly over its application. Fifty years after Universal Camera, the Supreme Court still has great difficulty leading the way.

      Once the Court put aside any theory of mechanical application, scope of review doctrine seems to have suffered from benign neglect. Rather than locating guideposts between mechanical application and freelancing, courts and commentators have largely abandoned the field. (20) With Congress unsure of what to do next, all options remain open. Evaluation of outcomes may help to sharpen differences among the various conceptually distinct but empirically muddled review standards and, by so doing, regain doctrinal clarity. The Court has acted in related contexts where outcomes have been affected through judicially controlled guidelines, such as scope of review over questions of law and policy. (21)

      Courts and scholars have simply not devoted comparable attention to the interpretation of scope of review standards relating to facts. Instead, explanation of how these standards work has been relegated to the realm of "inarticulate" decision factors that are said to defy rules of consistency. (22) Combining these subjective factors with more objective outcomes assessments is the focus of this Article. This need not be a controversial undertaking. The scope of judicial review of facts is far less politically charged than substantive review of informal rulemaking, (23) or review of pure questions of law or policy. (24) By turning even a portion of the energy the Court expends on those decisions to scope of review over questions of fact may produce a better understood and improved...

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