• When an agency has an adjudication procedure involving both an ALJ and the head(s) of the agency, the ALJ’s findings derived from the demeanor of witnesses (“testimonial inferences”) recieves “weight” from the agency head. 
• Inferences that can just as well be derived from the cold record (“derivative inferences”), however, do not recive any cich weight, though like all of th ALJ’s conclusons they become part of the record

•  (“was Lund on patrol that night?”) are reviewed under the substantial evidence standard 

• Questions of law (“what constitutes being ‘in the course of employment’?”) are reviewed de-novo—but perhaps with deference added on

JUDICIAL REVIEW

The Hearst line of cases suggest that deference may be appropriate on questions of the law when an Art. III court reviews an agencys formal adjudication

As in CHEVRON,  deference is obtained only when

(1) the statute is one that the agency is in charge of applying; and

(2) the statue is ambiguiS and leaves it to the agency to resolve the ambiguity.

At that point, the court should accept any agency interpretations that is reasonable. 

. If Hearst deference does not apply, then review of questions of law remains de novo

JUDICIAL REVIEW

ISSUES ARISE OVER MIXED QUESTIONS OF FACT AND LAW :, which are questions that require of the agency both a factual, which are questions that require of the agency both a factual assessment of what happened, and a legal assessment of the standard to be applied. f what happened, and a legal assessment of the standard to be applied. 

• This issue is less complicated when HEARST deference applies, because then both fact and law review is essential deferential to the same degree (reasonableness).
• If HEARST  does not apply, however, these mixed questions may not be reviewed with as much deference
  • Underlying factual findings will be
  • Application of the law to those facts will not be

When can a Art. III court review a decision about facts De Novo?

1. The only when the agency’s fact finding ability is inherently inadequate
   1. If as to fact-finding, the agency simply failed to execute, the court will usually just remand 
2. IF the agency’s specific statute to direct that actions begin in article III court in the first place

IF HEARST DEFERENCE DOES NOT APPLY TO MIXED ??'S OF LAW AND FACT, HOW DO YOU SOLVE THIS PROBLEM?

1. Whether the agency used an acceptable legal standard (a question that may or may not be answered deferentially)

IF YES--> 

2. Whether there is substantial evidence it support the factual findings plugged into it.

JUDICIAL REVIEW

ARBITRARY AND CAPRICIOUS standard, which applies to questions of fact in an informal adjudication being reviewed in court:

• Requires reasonableness
• How can an agency be A&C?
  • By giving inadequate explanation of the basis for the decision
    • apply the adequate-explanation requirement to substantial-evidence review as well as arbitrary and capricious review.
  • The agency cannot be unreasonably inconsistent from one case to the next; other than in cases of first impression, the agency must justify an adjudicatory decision in terms established agency precedent,