Marc James Ayers
Challenging or defending the decision of an Alabama administrative agency involves unique procedures,theories and strategies often not present in standard litigation. While there are many other aspects of Alabama appellate jurisprudence in the administrative law context worthy of discussion, this article is intended to present a quick overview of the main topics practitioners should keep in mind when engaged in judicial review of an administrative agency decision.
I. The Purpose of Administrative Agencies
Administrative agencies are governmental entities typically created by statute1 established to exercise regulatory "expertise in a specific area."2 For example, where the legislature enacts a statute covering "highly technical, specialized interstitial matter[s],"3 it may delegate to a specialized administrative agency the power to make the required findings, rules and rulings necessary to implement the statute.4 In doing so, the agency is intended to have "specialized competence in the field of operation entrusted to it,"5 and is expected to apply not just its expertise, but also its ever-increasing experience when making findings or issuing decisions.
Understanding the purpose and powers of administrative agencies is important because, as discussed in more detail below, such an understanding is key to advancing or defending against a judicial challenge to an agency's decision-and especially to navigating the deference given to agency interpretations of governing statutes and regulations.
II. Appellate Procedure
Appeals from decisions of administrative agencies are often subject to special rules of procedure. "A fundamental concept of judicial review of administrative action is that it is a limited review, delineated by statute and court-established standards relating to the nature of the issues or questions open to judicial review, or to the particular method or means by which review can be had."6 Ultimately, by statute, the Alabama Court of Civil Appeals has jurisdiction to hear appeals stemming from decisions of administrative agencies,7 and further review by the Alabama Supreme Court would be discretionary by way of the writ of certiorari. However, the method by which an appeal from an administrative agency is taken prior to arriving at the court of civil appeals can differ substantially.
A. Early practice
Historically, appellate review of administrative decisions was available through the common law writ of certiorari (barring some express statutory provision allowing an appeal by another means, such as by mandamus8 ). This writ was first reviewed by the circuit court acting in an appellate capacity, and then by the appellate courts. In such a circumstance, review was limited in a manner consistent with the nature of certiorari as an extraordinary remedy: [C]ourts will issue certiorari to make a limited review of the quasi-judicial acts of administrative boards and officers. That limited power is to determine whether the acts in question were supported by any substantial evidence, or, otherwise stated, whether the findings and conclusions are contrary to the uncontradicted evidence, or whether there was an improper application of the findings viewed in a legal sense.9
This standard was in many respects incorporated by the legislature in the Alabama Administrative Procedure Act.10
B. The Alabama Administrative Procedure Act
Enacted in 1981,n the Alabama Administrative Procedure Act ("AAPA")12 serves as the default set of procedural rules for challenging administrative agency decisions, among other things (such as providing the parameters for agency rulemaking, etc.). The AAPA was based upon the Revised Model State Administrative Procedure Act, a uniform model statute promulgated by the Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws).13 As expressly stated by the legislature, the AAPA was "intended to provide a minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public,"14 and is to be "construed broadly to effectuate its purposes."15 The AAPA applies to "[e]very state agency having express statutory authority to promulgate rules and regulations,"16 but does not govern "agencies whose rules or administrative decisions are subject to approval by the Supreme Court of Alabama and the Department of Insurance of the State of Alabama."17
With regard to appeals from agency decisions, the AAPA is intended "[t]o simplify the process of judicial review of agency action as well as increase its ease and availability."18 The AAPAs general procedure for obtaining judicial review of agency decisions is set forth in Ala. Code 1975, § 41-22-20, which provides, among other things, for a deferential review akin to the historical practice (unless by separate statute the legislature has provided for de novo review):
Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following: (1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) In violation of any pertinent agency rule;
(4) Made upon unlawful procedure;
(5) Affected by other error of law;
(6) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(7) Unreasonable, arbitrary or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.19
C. Special provisions providing for judicial review
"Nothing in the [AAPA], however, relieves agencies of the duty to comply with additional procedural requirements otherwise established by law."20 And, in fact, the legislature has, at times, created additional, unique avenues of judicial review for decisions of particular administrative agencies.
One example would be found in appeals from final tax orders issued by the Alabama Department of Revenue, a procedure that has undergone several revisions over the years. Under the original form of the Alabama Taxpayers' Bill of Rights and Uniform Revenue Procedures Act ("TBOR"),21 enacted in 1992, judicial review of certain final determinations of the Department of Revenue was obtained through filing of a notice of appeal in circuit court or in the department's administrative law division (which was then followed by an appeal to circuit court),22 with further appellate review as of right in the Alabama Court of Civil Appeals. However, in 2014, the legislature abolished the department's ALD and created the Alabama Tax Tribunal,23 a three-person tribunal "separate from and independent of the authority of the Commissioner of Revenue and the Department of Revenue."24 The Alabama Tax Tribunal is expressly not "subject to the declaratory judgment, declaratory ruling, or contested case provisions of the Alabama Administrative Procedure Act." Under the new structure, appeals from final orders of the Department of Revenue can still be filed in circuit court, but they can also be heard before the independent tribunal.
Another example is appeals from agencies wherein the legislature has removed the circuit courts' role altogether, and has directed that any appeal will go directly to the Alabama Court of Civil Appeals. This is true with regard to, for example, appeals from disciplinary decisions of the Alabama Board of Medical Examiners27 and from the state Health Planning and Development Agency concerning the issuance of certificates of need.28 In such appeals, the administrative record is compiled by the agency and transmitted directly to the court of civil appeals as the record on appeal.29
A word of caution: where the legislature has provided a specific statutory avenue of appeal, one should assume that that avenue provides the sole appellate remedy and must be strictly followed to preserve one's appellate rights. '"Appeals from decisions of administrative agencies are statutory, and the time periods provided for the filing of notice of appeals and petitions must be strictly observed,' on pain of dismissal."
III. Standards of Judicial Review of Administrative Agency Decisions
As it is in any appeal, determining and applying the applicable standard of review in the appeal of a decision of an administrative agency is crucial. Depending on the type of agency decision at issue, that standard of review can vary.
A. True "trial de novo"
Some statutes direct that judicial review of an agency decision will be by "trial de novo." Under this standard, the parties would essentially be allowed to start completely from scratch-from a true "blank slate." The reviewing court will attach no weight or presumption of correctness to the agency's decision and the reviewing court can take evidence (even evidence not submitted before the...