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previous opinions of this Court considering discretionary
authority of the Commissioner (i.e., we did so apart from any
consideration of the APA judicial review provisions). See id.;
Cheshire v. Commissioner, 115 T.C. 183, 198 (2000), affd. 282
F.3d 326 (5th Cir. 2002).
3. The Record Rule
The record rule refers to the general rule of administrative
law that a court can engage in judicial review of an agency
action based only on consideration of the record amassed by the
agency (the administrative record). 2 Pierce, Administrative Law
Treatise, sec. 11.6, at 822 (4th ed. 2002). Of course, in
situations where Congress has provided for de novo proceedings in
the reviewing court, the record rule by its terms does not apply.
On the other hand, “in cases where Congress has simply provided
for review, without setting forth the standards to be used or the
procedures to be followed, this Court [the Supreme Court] has
held that consideration is to be confined to the administrative
record and that no de novo proceeding may be held.” United
States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963) (citing
pre-APA cases).4 Similarly, standards of review such as
“arbitrary” and “capricious” (terms we have associated with the
4 The record rule predates, and indeed is not codified in,
the APA, which was enacted in 1946. See, e.g., Tagg Bros. &
Moorhead v. United States, 280 U.S. 420, 443 (1930); see also 2
Pierce, Administrative Law Treatise, sec. 11.6, at 823 (4th ed.
2002).
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