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

Abstract

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.