Threshold Rules as Tools of Deference?: Circuit Judge Gatekeeping in Administrative Agency Cases*

Article excerpt

Given the importance of the courts in monitoring agency decisions, the extent of deference they offer to agencies is very important. Thus, existing research on administrative agencies and the courts has naturally focused on the extent to which courts defer to agency decisions on the merits of legal claims. Previous scholars, however, have not systematically assessed whether deference is also achieved via the use of threshold rules. In this article, we investigate the extent to which threshold rules are raised in administrative agency litigation and explore the nature of their use. Although our analysis reveals that procedural questions of access are considered in a nontrivial number of administrative agency cases heard by the U.S. Courts of Appeals, the results do not suggest that circuit judges consistently use such rules to curb the consideration of all claims raised in a given case. In addition, circuit judges are not more likely to deny access in challenges against executive as opposed to independent or other agency types. The results do suggest, however, that both ideological considerations and litigant status may play a role in influencing circuit-judge threshold votes in this context.

Through judicial review of agency action, the courts play a critical role in exercising control over administrative agencies. The Administrative Procedures Act (APA) of 1946 states that "any person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof" (5 U.S.C. § 702). While the federal courts are statutorily charged with the oversight of agency action, Supreme Court precedent, in particular, the precedent set by Chevron U.S.A., Inc. v. NRDC (1984),' suggests to lower courts that they should defer to agency expertise and, more important, agency interpretations of congressional legislation. This puts the federal courts in a precarious position where they are statutorily obligated to review administrative agency cases, but precedent directs the courts to defer to the agency in question.

While scholars have examined the extent to which the courts do, in fact, defer to agencies on the merits of legal challenges brought against them (see, e.g., Canon and Giles, 1972; Crowley, 1987; Humphries and Songer, 1999; Sheehan, 1990, 1992; Tanenhaus, 1960), courts can potentially defer to administrative agencies by way of other doctrinal and procedural rules of access (see, e.g., Mansfield, 1993:68-69; Smith, 1993:1570). In particular, judges can employ a number of threshold rules involving questions of standing, mootness, ripeness, exhaustion, jurisdiction, etc., to either narrow the claims considered in a given case or to refuse to consider any of the claims a litigant presents. Even if systematic deference is not the ultimate outcome of the use of such rules in the long tun, their employment can foreclose important opportunities for litigants to challenge agency decisions.

Take, for example, the alleged injury of the California Association of the Physically Handicapped (CAPH) in CAPH v. FCC (1985). In this case, CAPH appealed the FCCs decision to approve a stock transfer at the request of a media company via a "short form application" (pp. 824-25). Members of this group held the company had not done enough to make sure its programming was accessible nor had it, in CAPH's opinion, engaged in "reasonable efforts to hire the handicapped" (p. 825). However, a majority of a D.C. Circuit panel concluded the group lacked standing to challenge the FCCs decision. As the majority held, "The Association . . . cannot fairly trace its ongoing injury - either in origin or in endurance - to the transfer in question" (p. 825). Because of the nature of the requested stock transfer, the majority explained, there would be no effective change in who ran the media company regardless of the FCCs decision (pp. 826-27). The majority did, howevet, allude to the possibility that the group might have standing to sue in a "license renewal proceeding" (p. …