568
Souter, J., dissenting
hallmark of such review. General Electric Co. v. Joiner, 522 U. S. 136, 143-147 (1997); National Hockey League v. Metropolitan Hockey Club, Inc., 427 U. S. 639, 642 (1976) (per curiam). Thus, in such a case as this one, deference may be accorded to any reasonable selection of factors as relevant to the exercise of a court's discretion (since the determination to recall is one for which criteria of decision have not become standardized), see United States v. Criden, 648 F. 2d 814, 818 (CA3 1981), and to the weighing of these factors in light of the particular facts, see Lawson Prods., Inc. v. Avnet, Inc., 782 F. 2d 1429, 1437 (CA7 1986); 1 S. Childress & M. Davis, Federal Standards of Review § 4.21, p. 4-163 (2d ed. 1992) ("It could be said, then, that in run-of-the-mill discretionary calls, review applies differently by the context, facts, and factors, but that many times the actual level of deference boils down to one similar to that used for the clearly erroneous rule. As a general proposition, then, abuse of discretion deference is closer to a clear error test than to the jury review test of irrationality"); cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971) (explaining the standard of review under 5 U. S. C. § 706(2)(A), which requires agencies to make choices that are not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law"); ibid. ("To make th[e] finding [required under § 706(2)(A)] the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment"). The obligation of deference is only underscored here by the fact that the reason for the recall was to consider an en banc rehearing, a matter of administration for the Courts of Appeals on which this Court has been careful to avoid intrusion, see Western Pacific Railroad Case, 345 U. S. 247, 259, and n. 19 (1953).
The factors underlying the action of the Court of Appeals in this case were wholly appropriate, the court's stated justi-
Page: Index Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 NextLast modified: October 4, 2007