“To Remand, or Not to Remand”: Ventura’s Ordinary Remand Rule and the Evolving Jurisprudence of Futility

By: Patrick J. Glen


Presumably few federal appellate judges are confronted with the Danish prince’s existential angst: “To be, or not to be: that is the question. . . .”1 Nonetheless, a similar ambivalence may be present in the circumstance of judicial review of administrative agency decisions. No less eminent an authority than former Second Circuit Judge Henry Friendly expressed just such angst in the introduction to his 1969 Duke Law Journal article, in which he attempted to discern bright-line rules in the Supreme Court’s 1943 SEC v. Chenery2 decision: “Although when I began my labors, I had the hope of discovering a bright shaft of light that would furnish a sure guide to decision in every case, the grail has eluded me; indeed I have come to doubt that it exists.3 Determination when to reverse and remand a decision that an administrative agency had power to make, and sufficient evidence to support, is, I fear, perhaps more art than science.”4 The nature and scope of judicial review of administrative decisions has taken on increasing importance as the size of the administrative state has grown and the number of administrative adjudicators has multiplied. As one commentator has noted, “[j]udicial review of administrative agency decisions is one of the cornerstones of the modern administrative law system[,] . . . although the nature and scope of judicial review, and the authority of the courts to dispose of these matters reflect a variety of approaches. . . .”5 To a large degree, the question of whether and in what circumstances remand to the agency rather than a judicial decision in the first instance is required is still resolved with at least su-perficial reference to the Supreme Court’s Chenery decision. In that decision, the Court laid out the basic precepts of judicial review of administrative action. “If the action rests upon an administrative determination— an exercise of judgment in an area which Congress has entrusted to the agency—of course it must not be set aside because the reviewing court might have made a different determination were it empowered to do so.”6 However, “if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law.”7 Thus, the Court gave voice to what would become the courts’ deferential stance to agency factual findings and discretionary determinations, and its continuing authority to review legal and constitutional claims de novo.


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