Seventh Circuit Abandons De Novo Review of Administrative Decisions
Recently, Dave Ziemer of the Wisconsin Law Journal wrote about a June 29, 2009 7th Circuit decision that replaces the time-honored moniker of “de novo” review with the phrase “independent decision,” at least for district court review of administrative decisions.
All in all, it would be best for judges and lawyers to stop thinking about ‘de novo review’ — with the implication that the judge is ‘reviewing’ someone else’s action — and start thinking about independent decision, which is what Firestone [a leading case on ERISA procedure] requires.
While the case considered ERISA, which is a specialized field, and is limited to the consideration of an administrative decision, Ziemer opines that it’s likely we’ll see the same change apply to typical litigation. The opinion itself (only seven pages long) contains good shorthand of the differences between simple review and independent decisions:
In a contract suit the judge does not “review” either party’s decision. Instead the court takes evidence (if there is a dispute about a material fact) and makes an independent decision about how the language of the contract applies to those facts.
