Procedure to Obtain, and Present Questions for Review

One of the basic elements of judicial review of administrative action is that the appellant has exhausted all administrative remedies.[i]  A court has the power to review an administrative action for any person who is adversely affected or aggrieved by agency action within the meaning of a relevant statute.  In judicial review proceedings a court has only appellate jurisdiction and cannot decide as to the rights of the parties or the applicability of any statute or rule.  The court will look if the district court correctly applied the law.[ii]  The court will not make a decision regarding the on the credibility of witnesses or the preponderance of the evidence.[iii]

The right to appeal an administrative agency’s decision is purely statutory, and an appeal taken without statutory authority must be dismissed for want of jurisdiction.[iv]  Further, where a court has statutory authority to review an administrative agency action, the court can acquire jurisdiction only if review is sought and the appeal is taken in the mode and manner and within the prescribed time provided by statute.[v]  Therefore, court acquires no jurisdiction and may not enter any order other than an order of dismissal, if the statutory requirements are not met.[vi]  Moreover proceedings for administrative review must be instituted by filing a petition in the district court of the county where the action is taken.  Summons must also be served within thirty days of the filing of the petition in the manner provided for service of a summons in a civil action.[vii]

Courts further promote a liberal interpretation of procedural rules governing judicial review of an administrative decision, and will not take an overly technical approach.  The purpose of this liberal method is to serve justice in a better way.[viii]

Certain statutes relating to particular agencies provide that unless a person makes an application to the agency for a rehearing on the order or decision involved, no cause of action will arise in any court and no proceeding to review any order of the agency can be brought by him/her.[ix]  However some other statutes provide that a petition for statutory review must be filed within a specified time after an application for rehearing is denied or after a decision on rehearing is rendered.  Therefore as a condition precedent the parties must file a petition for rehearing and obtain a ruling thereon before bringing the matter for judicial review before the court.[x]

Moreover, in Pan American Petroleum Corp. v. Federal Power Com., 268 F.2d 827, 828 (10th Cir. 1959), the court further held that there are certain statutes like the Natural gas Act which assert that a person seeking judicial review cannot rely upon grounds for relief that were not set forth in his/her petition for rehearing before the agency.  In such a situation, the statute not only bars the party from raising an objection which was not raised on rehearing, but also prevents the court from raising, considering, and sustaining those objections.  This rule can be waived by the court if there is reasonable ground for the failure to set forth the relief or for asserting new grounds.[xi]

[i] Island Bay Utilities, Inc. v. Alabama Dep’t of Environmental Management, 587 So. 2d 1210, 1212 (Ala. Civ. App. 1991)

[ii] Endicott v. Iowa Dep’t of Job Service, 367 N.W.2d 300 (Iowa Ct. App. 1985)

[iii] Reisner v. Board of Trustees, 203 N.W.2d 812, 815 (Iowa 1973)

[iv] Wheat v. Ramsey, 284 Ala. 295, 301 (Ala. 1969)

[v] McCorison v. Lincoln, 218 Neb. 827, 828 (Neb. 1984)

[vi] Id. at 828-829.

[vii] Essman v. Nebraska Law Enforcement Training Ctr., 252 Neb. 347, 350 (Neb. 1997)

[viii] Young v. Great Falls, 632 P.2d 1111, 1113 (Mont. 1981)

[ix] Pan American Petroleum Corp. v. Federal Power Com., 268 F.2d 827, 828 (10th Cir. 1959)

[x] Flannery v. Industrial Comm’n, 412 P.2d 297, 300 (Ariz. Ct. App. 1966)

[xi] Pan American Petroleum Corp, 268 F.2d at 828


Inside Procedure to Obtain, and Present Questions for Review