Judicial Review of the Merits


A rebuttable presumption of validity or correctness attaches to all actions of an administrative agency and the burden of demonstrating error is upon petitioner.  That burden includes providing a record sufficient to show that the agency’s decision is erroneous.

For instance in Cooper v. District of Columbia Dep’t of Employment Services, 588 A.2d 1172 (D.C. 1991), Petitioner injured party sought review of a decision of respondent District of Columbia Department of Employment Services (DOES), which denied his claim under the District of Columbia Victims of Violent Crime Compensation Act of 1981, D.C. Code Ann. § 3-401 et seq. (1988).  The injured party was beaten and sought compensation under the Act. The claim was denied after a DOES hearing examiner found that the injured party was not an “innocent victim” of a violent crime. The examiner’s determination was based upon findings that the injured party had prior verbal altercations with the men who beat him and that he had initiated the argument that escalated into a physical confrontation. On the injured party’s petition for review, the court vacated and remanded. The court held that the injured party failed to carry his burden of demonstrating that DOES’ factual findings were not supported by substantial evidence in the record because he did not ensure that the essential parts of the record were forwarded to the court. However, the court was also unable to affirm DOES’ decision because the factual findings recited did not provided a foundation upon which DOES’ conclusion of law could be reached under the Act. DOES’ error resulted from its interpretation of “innocent victim” because neither the requisite finding of participation in unlawful activity nor the type of misconduct described in D.C. Mun. Regs. tit. 28, § 2309.9 formed part of DOES’ decision.  The court vacated DOES’ decision, which denied the injured party’s claim for compensation. The court remanded for further proceedings.

Generally, the findings and conclusions of the agency and questions of fact are considered prima facie true and correct.  There is a strong presumption of reasonableness that an appellate court must accord an administrative agency’s exercise of statutorily delegated responsibility, unless the court determines that the agency’s findings are internally inconsistent, impeached by evidence of prior inconsistent statements, rest on improper inferences, or are otherwise insupportable.  Thus, if the agency action is constitutionally authorized by statute, it is presumed valid on review unless it is not supported by substantial evidence and is so wide of its mark as to be outside the realm of fair debate, or is otherwise unreasonable, arbitrary or capricious and prejudices the parties[i].

The focal point for judicial review of an administrative action should be the administrative record already in existence, not some new record made initially in the reviewing court.  An issue not raised during the notice-and-comment period of a federal agency’s rulemaking is waived and cannot be raised in the court of appeals following promulgation of the final regulation. The task of the reviewing court is to apply the appropriate standard of review to the agency decision based on the record the agency presents to the reviewing court and the reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such inquiry. The agency’s action must be reviewed on the evidence and proceedings before the agency at the time it acted. Thus, if the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course is to remand to the agency for additional investigation or explanation.

However, this is a flexible rule, and review may be proper in exceptional cases or under extraordinary circumstances where injustice might otherwise result.  Thus, the reviewing court may decide an issue not raised in an agency action if the agency lacks either the power or the jurisdiction to decide it.  For example, the challenge to the constitutionality of a statute or a regulation need not be raised before the agency.  However, even constitutional claims may be required to be determined on the administrative record when the administrative procedure is fair and adequate for the presentation of material facts.  Moreover, a petitioner cannot obtain review of procedural errors in the administrative process that were not raised before the agency merely by alleging that every error violates due process.[ii]9

Further, under the Model State Administrative Procedure Act (1981), a person may obtain judicial review of an issue that was not raised before the agency, only to the extent that:

  • the agency did not have jurisdiction to grant an adequate remedy based on a determination of the issue;
  • the person did not know and was under no duty to discover, or did not know and was under a duty to discover but could not reasonably have discovered, facts giving rise to the issue;
  • the agency action subject to judicial review is a rule and the person has not been a party in adjudicative proceedings which provided an adequate opportunity to raise the issue;
  • the agency action subject to judicial review is an order and the person was not notified of the adjudicative proceeding in substantial compliance with the Act; or
  • the interests of justice would be served by judicial resolution of an issue arising from a change in controlling law occurring after the agency action or agency action occurring after the person exhausted the last feasible opportunity for seeking relief from the agency.

With regard to “moot questions”, it has at least two implications.  The term is used to indicate that the situation presented to the court does not constitute a justiciable controversy, although no change in facts or circumstances has supervened since the institution of the proceeding.  It is also used to indicate that, after the rendition of the administrative determination from which relief is sought in a court, an event has occurred that renders moot what, except for the event, might be a controversy upon which judicial power could act.  The intervening events that may render a case moot are of varied character, if:

  • such as:subsequent legislation;
  • other events independent of the will of the parties;
  • the conduct of the parties, such as payment of a tax the validity of which was at issue;or
  • receipt from the administrative agency of the ultimate relief demanded in court.

In MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (U.S. 2007), court held that, “in determining whether a declaratory-judgment action satisfies the case-or-controversy requirement, U.S. Supreme Court decisions require that the dispute be definite and concrete, touching the legal relations of parties having adverse legal interests, and that it be real and substantial and admit of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.  Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

In general, where a subsequent action taken during the pendency of a proceeding to review an agency determination resolves the issues in dispute, the proceeding should be dismissed as moot.  However, under the “capable of repetition, yet evading review” exception to the requirements of standing or justiciability, even where parties no longer have a legally cognizable interest in the outcome of the litigation, a court may proceed to adjudicate the controversy.  The “capable of repetition, yet evading review” doctrine is limited to the situation where two elements combine:

  • the challenged action is in duration too short to be fully litigated prior to its cessation or expiration; and
  • there is a reasonable expectation that the same complaining party would be subjected to the same action again. In determining whether to rely on this mitigating principle the court should consider a number of relevant factors including:
  1. the public importance of the question presented;
  2. the potential effect of the ruling on an ongoing program of the state’s penal or civil system; and
  3. the possibility of a similar effect on the plaintiff in the future.

The “capable of repetition, yet evading review principle” is not, in and of itself, a justification for reviewing an admittedly moot case but is merely one factor to be considered when faced with the potential matter[iii].

[i] Kaufman v. State Dep’t of Social & Rehabilitation Services, 248 Kan. 951 (Kan. 1991)

[ii] Vargas v. U.S. Dep’t of Immigration & Naturalization, 831 F.2d 906 (9th Cir. 1987)

[iii] Board of Education v. Connecticut Bd. of Labor Relations, 205 Conn. 116 (Conn. 1987)