Judicial Review - Arbitrary and Capricious

Question 1

Is judicial review using the standard “arbitrary and capricious” a question of fact or of law?

Answer 1

A question of fact.

Question 2

For an agency’s decision to be reviewed, is the presumption the agency acted correctly, or incorrectly?

Answer 2

The agency has the presumption that they did everything correct and the challenging party must prove the agency acted incorrectly.

Question 3

What is the 3 part test the court will examine when deciding whether an agencies action is arbitrary and capricious?

Answer 3

1) Is this new interpretation allowed under the statute?
2) Was there a good reason for the change?
3) Does the agency believe that this new policy is better? For this third prong, it doesnt matter what the court thinks, it only matters what the agency thinks.

Question 4

Is the court more deferential when creating a rule, or failing to create a rule?

Answer 4

The court is highly deferential to the agencies discretion when enforcing a rule. However, they are less deferential when an agency should have been made but hasn’t yet been made.