In some jurisdictions, apetition for reviewis a formal request for anappellate tribunalto review the decision of a lower court or administrative body.[1]If a jurisdiction utilizes petitions for review, then parties seeking appellate review of their case may submit a formal petition for review to an appropriate court.[2]InUnited States federal courts,the term "petition for review" is also used to describepetitionsthat seek review offederal agencyactions.[3]
Function of petitions for review in appellate procedure
editIn jurisdictions that utilize petitions for review, parties may file apetitionin anappellate tribunalthat asks the appellate tribunal to determine whether the previous court or tribunal reached the correct outcome.[4]In some jurisdictions, appellate tribunals will not rule on issues that are not raised in petitions for review.[5]Some courts also prohibit parties from filing othermotions(such as amotion for summary judgment) when they file petitions for review.[6]BecauseUnited Stateshabeas corpuslawrequires petitioners for writs ofhabeas corpusto haveexhausted state court remediesif they were convicted by a state court,habeaspetitioners must first file a petition for review in the highest court in the state in which they were convicted, and raise all applicable issues, before filing a petition for writ ofhabeas corpusin federal court.[7]However, in some cases, appellants may pursue issues on appeal by filing both a petition for review as well as a petition for writ ofhabeas corpus.[8]
Difference between petitions for review and petitions forcertiorari
editIn thecommon law tradition,only theCourt of Chanceryhad the power to grantprerogative writsthat directed inferior tribunals to send a record of proceedings to a higher court for review.[9]Beginning in the sixteenth century, theCourt of King's Benchalso gained the power to issue prerogative writs.[9]Over time, the power to grantcertioraribecame the power to grant an order as "a means of controlling inferior courts and persons and bodies having authority to determine issues affecting the rights of individuals".[9]However, writs ofcertiorariare traditionally only used when "the inferior body has acted without jurisdiction or determined an issue wrongly in law, but not on the ground that it had misconceived a point of law if it had jurisdiction and the proceedings areex facieregular, nor on the ground that its decision is wrong in fact ".[10]In England, theAdministrative Court(part of theQueen's Bench Division of the High Court of Justice) now issues "quashing orders" rather than writs ofcertiorari.[11]In the United States, theSupreme Court of the United Statesgrants writs ofcertiorari"to review questions of law or to correct errors or excesses by lower courts".[12]However, somestate courtsin the United States require parties seeking appellate review to submit petitions for review, instead of petitions forcertiorari,where the appellate tribunal grants an order that allows for review of the inferior tribunal's decision.[13]
Petitions for review of agency actions
editInUnited States federal courts,parties may seek review or enforcement of federal agency order by filing a petition for review in aUnited States circuit court of appealsthat has jurisdiction to review decisions from that agency.[14]The court actions ofenjoining,suspending and/or modifying the agency order is inherently part of a petition for review.[15]When a party submits a petition for review, the petitioner "must either identify in [the administrative] record evidence sufficient to support its standing to seek review or, if there is none because standing was not an issue before the agency, submit additional evidence to the court of appeals".[16]Once one party has filed a petition review, other parties may also filecross petitions for review,which also seek review of some or all of the issues decided by the lower court.[17]The reviewing court may vacate the agency's actions, it may vacate the action and remand the case to the agency for "further action or explanation", it may remand the case without vacating the decision, or it may dismiss the petition for review.[18]
See also
editReferences
edit- ^See, e.g.,Filing a Petition for Review: A Guide to Seeking Review in the Wisconsin Supreme Court3 (2011) ( "A petition for review is a document that asks the Supreme Court to review what happened in the Court of Appeals." ).
- ^See, e.g.,Cal. R. Ct.8.500 (defining "Petition for review" ).
- ^Josephine K. Mason,The Un-Creation of Rights: An Argument against Administrative Disclaimers,62Hastings L.J.559, 596 (2010).
- ^See, e.g.,Alaska R. of Ct.402-03 ( "An aggrieved party, including the State of Alaska, may petition the appellate court as provided in Rule 403 to review any court order or decision that is not appealable under Rule 202 and is not subject to a petition for hearing under Rule 302." ); 210Pa. Code Rule1561.
- ^Jeffrey Gauger, Bosley v. MeritSystems Protection Board: Reviving the Waiver Test,8Fed. Cir. B.J.9, 21 (1999).
- ^Sam Kalen,Federal Administrative Procedure Act Claims: The Tenth Circuit and the Wyoming District Court Should Fix the Confusion Attendant with Local Rule 83.7.2,11Wyo. L. Rev.513, 514 (2011).
- ^Nancy P. Collins,Does the Right to Counsel on Appeal End as You Exit the Court of Appeals,11Seattle J. Soc. Just.987, 989 (2013).
- ^Nancy Morawetz,Back to Back to the Future - Lessons Learned from Litigation over the 1996 Restrictions on Judicial Review,51N. Y. L. Sch. L. Rev.113,121 (2006-2007).
- ^abcDavid M. Walker,The Oxford Companion to Law197 (1980).
- ^David M. Walker,The Oxford Companion to Law197-98 (1980).
- ^Administrative Court Guidance: applying for judicial review,Her Majesty's Courts and Tribunals Service3 (2012) ( "Judicial review must be used where you are seeking:...a quashing order (i.e. an order quashing the public body's decision and formerly known as an order of certiorari" )
- ^David M. Walker,The Oxford Companion to Law198 (1980).
- ^James A. Vaught; R. Darin Darby,Internal Procedures in the Texas Supreme Court Revisited: The Impact of the Petition for Review and Other Changes,31 Tex. Tech L. Rev. 63, 86 (2000) (noting that Texas abandoned a system of "writs of error" in favor of "petitions for review" ).
- ^See 28 U.S.C. §§ 1296; 2341-49.
- ^Fed. R. App. P.15(a)(4) ( "In this rule 'agency' includes an agency, board, commission, or officer; 'petition for review' includes a petition to enjoin, suspend, modify, or otherwise review..." ).
- ^M. Elizabeth Magill; Mark Seidenfeld,Judicial Review,2001Dev. Admin. L. & Reg. Prac.113, 132 (2002) (citingSierra Club v. EPA,292 F.3d 895 (D.C. Cir. 2002) (internal quotations omitted) (modifications in original).
- ^5 C.F.R. § 1201.114(a)(2) ( "A cross petition for review has the same meaning as a petition for review but is used to describe a pleading that is filed by a party when another party has already filed a timely petition for review." ).
- ^Harry T. Edwards,Collegiality and Decision Making on the D.C. Circuit,84Va. L. Rev.1335, 1370 (1998).