Petition for review

In some jurisdictions, a petition for review is a formal request for an appellate tribunal to 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] In United States federal courts, the term "petition for review" is also used to describe petitions that seek review of federal agency actions.^[3]

Function of petitions for review in appellate procedure

In jurisdictions that utilize petitions for review, parties may file a petition in an appellate tribunal that 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 other motions (such as a motion for summary judgment) when they file petitions for review.^[6] Because United States habeas corpus law requires petitioners for writs of habeas corpus to have exhausted state court remedies if they were convicted by a state court, habeas petitioners 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 of habeas corpus in 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 of habeas corpus.^[8]

Difference between petitions for review and petitions for certiorari

In the common law tradition, only the Court of Chancery had the power to grant prerogative writs that directed inferior tribunals to send a record of proceedings to a higher court for review.^[9] Beginning in the sixteenth century, the Court of King's Bench also gained the power to issue prerogative writs.^[9] Over time, the power to grant certiorari became 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 of certiorari are 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 are ex facie regular, nor on the ground that its decision is wrong in fact".^[10] In England, the Administrative Court (part of the Queen's Bench Division of the High Court of Justice) now issues "quashing orders" rather than writs of certiorari.^[11] In the United States, the Supreme Court of the United States grants writs of certiorari "to review questions of law or to correct errors or excesses by lower courts".^[12] However, some state courts in the United States require parties seeking appellate review to submit petitions for review, instead of petitions for certiorari, where the appellate tribunal grants an order that allows for review of the inferior tribunal's decision.^[13]

Petitions for review of agency actions

In United States federal courts, parties may seek review or enforcement of federal agency order by filing a petition for review in a United States circuit court of appeals that has jurisdiction to review decisions from that agency.^[14] The court actions of enjoining, 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 file cross 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]

References

^ See, e.g., Filing a Petition for Review: A Guide to Seeking Review in the Wisconsin Supreme Court 3 (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, 62 Hastings 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."); 210 Pa. Code Rule 1561.
^ Jeffrey Gauger, Bosley v. Merit Systems Protection Board: Reviving the Waiver Test, 8 Fed. 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, 11 Wyo. L. Rev. 513, 514 (2011).
^ Nancy P. Collins, Does the Right to Counsel on Appeal End as You Exit the Court of Appeals, 11 Seattle 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, 51 N. Y. L. Sch. L. Rev. 113,121 (2006-2007).
^ ^a ^b ^c David M. Walker, The Oxford Companion to Law 197 (1980).
^ David M. Walker, The Oxford Companion to Law 197-98 (1980).
^ Administrative Court Guidance: applying for judicial review, Her Majesty's Courts and Tribunals Service 3 (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 Law 198 (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, 2001 Dev. Admin. L. & Reg. Prac. 113, 132 (2002) (citing Sierra 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, 84 Va. L. Rev. 1335, 1370 (1998).