Write 2 pages with APA style on Micky McDivet. Running Head: MICKEY McDIVET MICKEY McDIVET By M E MO R A N D U M 2 November The Supervising Attorney Standard of Review in Federal District Courts______

Write 2 pages with APA style on Micky McDivet. Running Head: MICKEY McDIVET MICKEY McDIVET By M E MO R A N D U M 2 November The Supervising Attorney Standard of Review in Federal District Courts

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When a federal district exercises its power as an appellate court of Administrative Law Judge (ALJ) decisions, the deference which it gives to the latter is governed by a standard of review. Such standard of review is dependent upon the issues brought up on appeal or review. In considering whether or not an appeal of Mickey McDivet’s case should be elevated to the appropriate federal district court, the standard of reviews discussed herein must be reviewed.

There are various standards of review that appellate courts may use. In federal district courts and where the decision under consideration is that of the ALJ, two standards of review are commonly considered, namely: substantial evidence, and. de novo.

A substantial evidence standard of review was defined in Richardson v Perales. 402 US 389, 401 (1971) as “such relevant evidence as a reasonable mind might accept as adequate to support a decision.” A reviewing court must set aside the decision of the trial court if it finds that the evidence used in supporting the decision lacks substance taking into account the evidence in the case’s record that opposed such findings (Universal Camera Corp v NLRB 340 US 474, 488 [1951]). In deciding whether evidence is substantial or not, the US Supreme Court in the Richardson case reminds appellate courts that is “more than a mere scintilla.” Five decided cases that made use of this standard are the following:

Kober v. Apfel, 133 F.Supp.2d 868 (2001)

Bowers v Astrue, 555 F. Supp. 2d 1241 (2008)

O’Connor v Barnhart, 2004 U.S. Dist. LEXIS 19537

Dunn v. Astrue, 660 F. Supp. 2d. 1290 (2009)

Hensley v Barnhart, 352 F.3d 353 (2003)

A de novo standard of review is one where a “reviewing court makes an original appraisal of all the evidence to decide whether or not it believes [the conclusions of the trial court]” (Bose Corporation v Consumers Union of the US, Inc. 466 US 485, 514 [1984]). A de novo standard of review applies when there is an error of law (Kober v Apfel, 133 F.Supp.2d 868 [2001] or a mixed error of law and facts (Johnson v Employment Security, 112 Wn.2d 172 [1989]). This standard of review was used in the following cases:

Kober v. Apfel, 133 F.Supp.2d 868 (2001)

Amanda J. v Clark County School District, 267 F.3d 877, 887-88 (2001)

Deal v Hamilton County Dept. of Education, 259 F Supp. 2d 687 (2003)

Closson v Astrue (2008) U.S. Dist. LEXIS 13129

Johnson v Employment Security 112 Wn.2d 172 (1989)

Any decision to elevate Mickey McDivet case must take into account the two standards of review, which the federal district courts commonly use in reviewing a case. The issues that an appealing party cites as basis for the appeal usually determine the standard that the court will use. An assignment of error of law, for example, will subject it to a de novo standard review and an assignment of error of fact on the part of the ALJ will subject it to a substantial evidence standard of review. An assignment of both types will create subject it to both standards.

References:

Amanda J. v Clark County School District, 267 F.3d 877, 887-88 (2001).

Bose Corporation v Consumers Union of the US, Inc. 466 US 485, 514 (1984).

Bowers v Astrue, 555 F. Supp. 2d 1241 (2008).

Closson v Astrue (2008) U.S. Dist. LEXIS 13129.

Deal v Hamilton County Dept. of Education, 259 F Supp. 2d 687 (2003).

Dunn v. Astrue, 660 F. Supp. 2d. 1290 (2009).

Hensley v Barnhart, 352 F.3d 353 (2003).

Johnson v Employment Security 112 Wn.2d 172 (1989).

Kober v. Apfel, 133 F.Supp.2d 868 (2001).

O’Connor v Barnhart, 2004 U.S. Dist. LEXIS 19537.

Richardson v Perales. 402 US 389, 401 (1971).

Universal Camera Corp v NLRB 340 US 474, 488 (1951).