§ 21.12 Remedies in Judicial Review Proceedings

• Jurisdiction: Washington

§21.12 REMEDIES IN JUDICIAL REVIEW PROCEEDINGS

The statutes governing judicial review of administrative action typically describe the remedies available to the court.

(1) Remedies under the APA

Under the Administrative Procedure Act, Ch. 34.05 RCW, a reviewing court may (1) affirm the agency action, (2) order an agency to take action required by law, (3) order an agency to exercise discretion required by law, (4) set aside agency action, (5) enjoin or stay agency action, (6) remand the matter for further proceedings, or (7) enter a declaratory judgment order. RCW 34.05.574. A declaratory judgment order is the only form of relief available in judicial review of an agency rule. See RCW 34.05.570(2).

Generally, the court may grant relief only if the court finds the agency action violated one or more of the standards of review set forth in RCW 34.05.570. See RCW 34.05.574(1). Exceptions apply for certain forms of remand. See §21.12(1)(b).

(a) A court may not modify an agency order unless authorized by another statute

The reviewing court is limited to ruling solely on the agency's decision and may not issue orders making its own rulings regarding the substance of the dispute. Yakima County v. Yakima Cnty. Law Enforcement Officers' Guild, 174 Wn.App. 171, 194, 297 P.3d 745, review denied, 178 Wn.2d 1012 (2013). Modifying the agency action is not included in this list of types of relief available from the court. The same was true under the prior version of the APA. Former RCW 34.04.130(6); Skold v. Johnson,29 Wn.App. 541, 549, 630 P.2d 456, review denied, 96 Wn.2d 1003 (1981). There is a reference in RCW 34.05.574(4) to modification of agency orders, because other enabling statutes authorize the court to modify agency action. See, e.g., RCW 50.32.150 (authorizing the court to affirm, reverse, or modify decisions of the Employment Security Department). But see Silverstreak, Inc. v. Dep't of Labor & Indus.,159 Wn.2d 868, 893, 154 P.3d 891 (2007) (although the court upheld the department's new interpretation of its rule and found the record contained substantial evidence to support the agency's application of the rule, the court held that the department was equitably stopped from retroactively enforcing its new interpretation of its rule).

Even when a court has authority to modify an agency action, the preferred remedy under the APA is to remand to the agency for modification "unless remand is impracticable or would cause unnecessary delay." RCW 34.05.574(1).

(b) Remand to the agency

Generally, the court may grant relief, including remand, only if it finds the agency action violated one or more of the standards of review set forth in RCW 34.05.570. See RCW 34.05.574(1). The court does not make findings; if critical findings are missing, the correct remedy is to remand to the agency for further proceedings. Marcum v. Dep't of Soc. & Health Servs., 172 Wn.App. 546, 560, 290 P.3d 1045, 1052 (2012). When an issue is not decided but remains relevant to the challenged action, the appropriate remedy is to remand for the agency to exercise its judgment. Suquamish Tribe v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 156 Wn.App. 743, 775-79, 235 P.3d 812 (2010), review denied, 170 Wn.2d 1019 (2011).

Remands under RCW 34.05.554 or RCW 34.05.562(2) provide a limited exception to this general rule, because remands under these sections do not require a finding that the agency erred or otherwise violated the standards of review. For example, a remand for additional fact finding is not equivalent to a reversal or modification of the agency's action. Hamel v. Emp't Sec. Dep't,93 Wn.App. 140, 148, 966 P.2d 1282 (1998), review denied,137 Wn.2d 1036 (1999). An order for remand should state the statutory basis for the remand. For a remand under RCW 34.05.574, the court's order must contain each violation or error by the agency under the standards of review on which the court based its decision. RCW 34.05.574(1).

In ordering a remand, the court may fashion a remedy that requires the agency to comply with the law, but the remedy must be for the purpose of addressing past errors; the court may not issue advisory opinions for the purpose of forestalling possible future errors. Boeing...