Overview

The United States administrative law system is complex. The US is a federal system with a written constitution in which governmental authority is divided between states and the federal government.

State Administrative Law

Each state has adopted its own state administrative procedure act to address administrative law issues arising under its jurisdiction. Many of these state administrative procedure acts are modelled after the federal Administrative Procedure Act (APA) and track at least some features of the federal APA (further discussed below). See, eg, Texas Government Code, Sections 2001.001 to 2001.903; NY State Administrative Procedure Act, Sections 100–501; California Government Code, Sections 11340–11361. States also adopt agency or issue-specific regulations that can provide for different or supplemental procedures. See, eg, 16 Texas Administrative Code, Sections 1.1–20.605 (rules of the Texas Railroad Commission regulating natural gas pipelines in the state of Texas); California Public Utilities Code, Sections 2771–2775.7 (regulation of electric and gas corporations).

State Judicial Review of Agency Action

State administrative practice is so varied in the US that meaningful generalisations regarding appellate review of agency action are difficult. New York State, for example, permits judicial review of some agency action before local trial courts (designated as New York Supreme Courts) through a petition filed under Article 78 of the state’s Civil Practice Law and Rules. Parties generally can pursue only the following types of claim (Consolidated Laws of New York, Chapter 8, Article 78, Section 7803):

• an agency or officer failed to perform a mandatory duty;
• an agency or individual officer acted outside the scope of its jurisdiction;
• an administrative action was contrary to law or an abuse of discretion or arbitrary and capricious; or
• an agency action was not supported by substantial evidence.

In addition, local and municipal governments often engage in administrative and regulatory activities, which may also be subject to judicial review.

Federal Administrative Law

At the federal level, federal administrative action is subject to a regulatory regime consisting of the following:

• the US Constitution, which allocates power among the judicial, legislative and executive branches and provides some safeguards for fundamental individual due process rights;
• the APA, 5 USC Sections 551–559, which establish general standards for how federal agencies make rules and adjudicate disputes, and express a general presumption that final agency action is subject to judicial review (but the APA does not on its own confer independent subject matter jurisdiction to courts);
• subject matter specific statutory regimes such as the Securities Exchange Act; Federal Power Act; Natural Gas Act; and Commodity Exchange Act which may provide subject matter jurisdiction to courts over certain agency action and prescribe different and specific procedures for resolution of particular categories of disputes; and
• Title 28 of the United States Code, which sets, in some cases, the standards under which some judicial review of administrative action can take place.

Federal Judicial Review of Agency Action

Judicial review of agency action may arise from enabling statutes providing courts with subject matter jurisdiction over agency action, or may take non-statutory forms, such as injunctive relief. Availability of judicial review for a particular agency action may be subject to threshold requirements, such as standing, ripeness, and exhaustion of administrative remedies. Note, however, that the APA precludes judicial review to the extent that statutes preclude judicial review, or agency action is committed to agency discretion by law (5 USC Section 701(a)).

Unless a specific regulatory statute or the Hobbs Act (28 USC Section 2342) provides for direct review of final agency action by a federal circuit court of appeals, judicial review is available as an initial matter in federal district court. See Watts v SEC, 482 F.3d 501 (D.C. Cir. 2007).

See 1.1 General Rules or Specific Regimes? for details.

The ability to seek judicial review of a given administrative action is a function of both the impact of the action subject to the challenge upon the person bringing the challenge and the extent to which the administrative action that is the subject of the challenge is final. Section 702 of the federal Administrative Procedure Act limits the ability to seek judicial review of agency action to “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute… ” (5 USC Section 702). Only final agency action is subject to judicial review, but objectionable intermediate or procedural rulings can be reviewed in connection with review of the final agency action (5 USC Section 704).

The twin requirements of aggrievement and finality have generated material litigation. Until the 2023 US Supreme Court decision in Axon Enterprise, Inc v FTC, 598 U.S. 175 (2023), defendants in administrative enforcement proceedings were not permitted to bring constitutional challenges to agency enforcement procedures directly in US District Court but were required to first litigate and lose the agency proceedings and only then raise their constitutional objections through judicial review in circuit court. The Axon decision permitted direct District Court challenges in at least some circumstances. For an analysis of the impact of the Axon decision, see Federal Courts, Leading Case, Axon Enterprise, Inc v FTC, 137 Harv. L. Rev. 340 (Nov. 2023).

US federal agencies only have authority to the extent delegated to them by Congress. See Louisiana Public Service Commission v FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act… unless and until Congress confers power upon it.”). While, in theory, legislative delegations of authority to a federal agency may be challenged on constitutional grounds, in practice invocation of the non-delegation doctrine has been exceedingly rare.

More generally, with respect to challenges to primary legislation (aside from legislative delegations of authority), in order to challenge a federal statute, a party first must prove the existence of a live case or controversy pertaining to the statute that results in direct harm to the party bringing the challenge. In other words, such a party must show aggrievement and standing to sue. Assuming both can be shown, parties could in theory challenge the constitutionality of the statute or the alleged inconsistency of the statute with other federal legislation. If a party challenges the legality of a federal statute in the context of a private dispute to which the United States is not a party (or challenges the constitutionality of a state statute in a case in which a state is not a party) in US federal court, it must comply with the notice requirements of Rule 5.1 of the Federal Rules of Civil Procedure. State statutes may be challenged on similar grounds if they allegedly violate the US Constitution, a state constitution, or create inconsistencies with other federal law or state law. One example of state legislative action challenged on constitutional grounds includes a Texas state law giving preference to in-state electric transmission developers: NextEra Energy Capital Holdings Inc v Jackson, 1:19-CV-626-DII, slip op. (W.D. Tex. 2024) (striking down the preference under the dormant Commerce Clause of the US Constitution). Another example is now invalidated state laws banning same-sex marriage struck down in Obergefell v Hodges, 576 U.S. 644 (2015).

Rules or regulations adopted pursuant to the authority granted by a federal statute can be challenged on a variety of grounds. For example, the rules could exceed the statutory jurisdiction of the agency promulgating them. In Texas Pipeline Association v FERC, 661 F.3d 258 (2011), the United States Court of Appeals for the Fifth Circuit struck down a Federal Energy Regulatory Commission rule requiring intrastate pipelines to post data pertaining to their operations, finding that the statute granting FERC additional authorisation to promote transparency in natural gas markets did not extend FERC’s jurisdiction to intrastate markets that were primarily regulated by the states.

Regulations also may be challenged for procedural infirmities including the failure to comply with notice and comment rule-making procedures. See, eg, Liquids Pipeline Association v FERC, 109 F.4th 543, 547-49 (D.C. Cir. 2024). Rules also can be challenged if Congress directed agencies to conduct a review or analysis prior to releasing a rule and if the agency failed to do so. See International Swaps & Derivatives Association v CFTC, 887 F. Supp. 2d 259 (D.D.C. 2012) (vacating CFTC position limit rules because the agency failed to consider whether it was required to first determine that position limits were economically necessary before promulgating them). More recently, the Supreme Court has overturned agency action under the “major questions doctrine”, where the challenged regulation was found to involve issues of “economic and political significance” that Congress had not clearly conferred an agency the authority to regulate (see West Virginia v EPA, 597 U.S. 697 (2022)).

There is no numerosity requirement to seek judicial review of administrative action in the United States. Federal and state regulatory enforcement actions typically focus on a limited number of respondents, often only one. Similarly, administrative benefits claims (social security and disability and veterans’ benefits) typically relate only to a single claimant. Such individuals have the right under both state and federal administrative procedure acts and often under other regulatory statutes and regulations to protect their rights through both agency action and judicial review.

Examples of private law agreements between public bodies and private entities in the US include consent decrees entered into after litigation has been filed and enforcement settlements. For a general overview of the operation of consent decrees in the US, see Tobias Wolf, Consent Decrees and Federal Jurisdiction, 84 U. Pittsburgh L. Rev. 547 (2022). Federal statutes may confer the right to submit comments or the right to intervene in connection with specific types of consent decrees. For example, the Comprehensive Environmental Response, Compensation, and Liability Act provides for statutory intervention rights (42 USC Section 9613), including the right to intervene to oppose a proposed consent decree. (See United States v ExxonMobil Corp, 264 F.R.D. 242 (N.D. W. Va. 2010).) The Tunney Act (15 USC Section 16) mandates publication of antitrust consent decrees with an opportunity for public comment, as well as judicial review of such agreements. Agency enforcement settlements reached before litigation may either permit public intervention or be subject to public review, depending on the requirements of the statutes and regulations under which they arise. Agencies may also enter into private law agreements in the context of government contracting, which may also be subject to challenge. The Tucker Act, 28 USC Section 1491, provides the US Court of Federal Claims with jurisdiction over claims against the United States for amounts over USD10,000 (the “Little” Tucker Act, 28 USC Section 1346, provides the Court of Federal Claims and district courts concurrent jurisdiction for claims of USD10,000 or less).

Agency policy statements generally cannot be challenged through judicial review because they have no legally binding effect. If an agency elects to implement a policy articulated in a policy statement it must “be prepared to support the policy just as if the policy statement had never been issued” (Pacific Gas & Electric Co v Federal Power Commission, 506 F.2d 33, 38 (D.C. Cir. 1974)). The policy statement is entitled to no weight (see Panhandle Eastern Pipe Line Co v FERC, 198 F.3d 266 (D.C. Cir. 1999)). Interpretive statements or guidelines similarly have no legal effect and are not appropriate subjects for judicial review (see American Tort Reform Association v Occupational Safety & Health Administration, 738 F.3d 387 (D.C. Cir. 2013)). Note, however, that interpretive rules would become reviewable once incorporated into a binding final rule or to the extent they imposed concrete regulatory burdens on a party (Institutional Shareholder Services Inc v SEC, 718 F. Supp. 3d 7, 19-20 (D.D.C. 2024)). Challenges to non-binding agency action may also be brought and sustained if the action is found to effectively function as a legislative rule and as a practical matter has a legally binding effect (see, eg, General Electric Co v EPA, 290 F.3d 377 (D.C. Cir. 2002)).

In general, governmental bodies or officials cannot be sued under the doctrine of sovereign immunity, unless the government has waived immunity. However, sovereign immunity is subject to certain exceptions – for example, when the body or person has acted outside its authority (see, eg, Larson v Domestic & Foreign Commerce Corp, 337 U.S. 682 (1949)). Governmental bodies may be subject to challenge in connection with commercial contracts. See Contract Disputes Act, 41 USC Section 7102 et seq.

Congress can modify the scope of federal administrative review by statute. For example, the Mountain Valley Pipeline project was delayed by judicial challenges for many years. In 2023, Congress passed the Fiscal Responsibility Act of 2023. Section 324 of the Fiscal Responsibility Act mandated the issuance of permits necessary to complete the Mountain Valley Pipeline project and stripped lower federal courts of appellate jurisdiction to delay or deny those approvals (Pub. L. No. 118-5, 137 Stat. 47 (2023)). The US Court of Appeals for the Fourth Circuit attempted to stay the operation of the statute but its injunction was overturned by the US Supreme Court (Mountain Valley Pipeline, LLC v Wilderness Society, 144 S. Ct. 42 (2023)). While the terms of private contracts cannot modify the requirements of federal law per se, as noted above in 3.4 Agreements Between Private Entities and Public Bodies, administrative agencies can enter into settlement agreements that can terminate pending litigation or end pending investigations.

As noted in 2.1 Determining Susceptibility and 3.1 Challenging Primary Legislation, a party seeking to bring a challenge to administrative action in the US must demonstrate that it is aggrieved by the action or otherwise affected.

Under US Supreme Court precedent, associations may have standing to sue, but must meet the same requirements to show injury in fact, causation and redressability that are applicable to individual plaintiffs (FDA v Alliance for Hippocratic Medicine, 602 U.S. 367, 382 (2024)) (“An Article III court is not a legislative assembly, a town square, or a faculty lounge. Article III does not contemplate a system where 330 million citizens can come to federal court whenever they believe that the government is acting contrary to the Constitution or other federal law.”).

If charities or NGOs cannot meet the standing requirements, they cannot initiate administrative review. Under the concept of associational standing, an association can demonstrate standing by showing its members have standing in their own right and that the interests the association seeks to protect are germane to its purpose, even if the association itself has not been directly injured (Hunt v Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977)).

In an action filed in US district court, parties can file motions for leave to intervene as of right or through what is called “permissive” intervention. Under Rule 24 of the Federal Rules of Civil Procedure, a party can intervene as of right if a federal statute gives it the unconditional right to intervene or if the movant claims an interest in property or a transaction that is the subject of the action and resolution of the action might adversely affect its interests, unless those interests are adequately represented by other parties. Permissive intervention can be granted in a district court action if federal law provides the party with a conditional right to intervene or if the party shares a claim or defence with common issues of law or fact with an issue raised by another party. Government officers or agencies are generally granted the right to intervene if a claim or defence relates to a programme within their jurisdiction.

In a judicial review action pending before a circuit court of appeals, Rule 15(d) of the Federal Rules of Appellate Procedure permits timely motions for leave to intervene within 30 days of the date on which a petition for review is filed. The motion for leave to intervene must provide a concise statement of the party’s interest. Generally, courts of appeal also will require a party to indicate whether it supports the petitioner or the respondent in the appeal for the purpose of allocating briefing rights and responsibilities. For challenges to state governmental action, each individual state’s laws set forth the rights and procedures for interventions (see, eg, 210 Pennsylvania Code Rule 1531).

If a party has been granted status as an intervenor in a US district court proceeding, it will have full rights as a party unless the court places limitations on those rights in the course of determining whether to grant intervention (although a court’s ability to condition intervention as of right has been controversial). In cases involving intervention in the courts of appeals, intervenors are generally limited to the issues raised by petitioners in their petitions for review and precluded from interjecting new or different objections.

Parties may also seek to file briefs amicus curiae (friend of the court) in an action before a US court of appeals as prescribed in Rule 29 of the Federal Rules of Appellate Procedure. Amicus briefs may be permitted on motion in US district courts, but the practice is less common. Amicus briefs can permit parties, associations or NGOs to weigh in on a legal issue of interest without running the gamut necessary to show standing to become a party in a case. Note, however, that amicus briefs are subject to the court’s discretion and cannot be sponsored financially or ghostwritten by one of the litigants in a case. As noted in 7.1 Joinder, for state proceedings, the rules governing rights of intervenors and participation by amici curiae are governed by the individual state laws.

Administrative agencies act based on written records. If an agency determines that resolving a matter before it requires the development of facts, it can set the matter for hearing and provide opportunities for the exchange of discovery materials between the parties. Alternatively, an agency may elect to develop a record based on the written submissions (position papers, comment letters, affidavits) submitted by interested persons. In either case, to discharge its statutory obligations under the APA and its enabling statutes, an agency will need to be in a position to demonstrate that its decision is supported by substantial evidence.

The choice of when and how to employ hearing procedures, including the right to seek discovery, is generally left to an agency’s discretion. Cases in US district court in which agency action is subject to de novo review (such as market manipulation cases under the Federal Power Act or the Commodity Exchange Act) are subject to the mandatory discovery procedures in Rule 26(f) of the Federal Rules of Civil Procedure. The APA provides that reviewing courts “shall review the whole record or those parts of it cited by a party…” (5 USC Section 706(2)).

See 8.1 Disclosure/Discovery.

Most federal and some state administrative agencies create the possibility of submitting either live evidence or pre-filed evidence with live cross-examination of witnesses as an option for developing an administrative record, either before the agency itself or before an Administrative Law Judge or hearing examiner. As noted in 8.1 Disclosure/Discovery, the choice of which procedures to adopt usually is left to the sound discretion of an agency. In the context of judicial review, courts do not generally review an agency’s factual determinations de novo, with certain limited exceptions (see Citizens to Preserve Overton Park, Inc v Volpe, 401 U.S. 402, 415 (1971)).

As noted in 2.1 Determining Susceptibility, agency actions must be final to be subject to judicial review under federal law. Specific statutes (such as the Natural Gas Act and the Federal Power Act) may impose a requirement to seek rehearing before an agency before a petition for review can be filed. Appeals arising under the Hobbs Act do not generally require this to show that an agency action is in fact final (see 1.1 General Rule or Specific Regimes; Association of Oil Pipelines v FERC, 83 F.3d 1424, 1432 (D.C. Cir. 1996)). Under the doctrine of administrative exhaustion, a petitioner typically must exhaust all administrative remedies prior to seeking judicial review. However, there are some exceptions that permit direct appellate review (for example, in the context of Freedom of Information Act litigation, a requestor may file for judicial review without filing an administrative appeal if the agency has not responded to its request within the required statutory timeframe).

See 9.1 Preliminary Requirements.

The time period for pursuing federal judicial review generally is set by federal statute. Under the Hobbs Act, petitions for review must be filed within 60 days of the date the final order challenged was issued. Other economic regulatory statutes in the US (including the Natural Gas Act and the Federal Power Act) require petitions for review to be filed within 60 days of an agency order denying rehearing. Similarly, appeals of SEC orders must be filed within 60 days of the date a final rule or order is issued (15 USC Section 78y). State administrative appeal rights are set by the laws of each state. In the context of agency rule-making under the APA, the Supreme Court has recently held that the six-year statute of limitations begins to accrue when the plaintiff is injured by the final agency action (not when the action itself became final) (Corner Post, Inc v Board of Governors of the Federal Reserve System, 603 U.S. 799 (2024)).

The material to be provided in an initial challenge to an administrative action varies depending on the nature of the claim and the underlying regulation. In general, the focus of such challenges remains on showing that the challenged action is:

• contrary to law;
• in excess of the agency’s statutory jurisdiction;
• contrary to constitutional safeguards or to the separation of powers;
• arbitrary or capricious; or
• not supported by substantial evidence or the product of reasoned decision-making.

The Federal Rules of Civil Procedure, Federal Rules of Appellate Procedure, and relevant state laws, as applicable, govern the specific procedures and filing requirements to initiate a complaint or petition for review of agency action.

Legal arguments and evidence will first be submitted before an administrative agency pursuant to the procedures the agency elects to adopt, as discussed, which could include a paper hearing or a live hearing with witnesses and cross-examination. For judicial review in a US court of appeals, judicial review will be based on an analysis of the administrative record developed before the agency, supplemented by legal briefs and oral argument filed with the court. For de novo US district court actions, legal arguments and evidence will be presented as directed by the court, but generally will arise:

• in connection with motions to dismiss or answers to motions to dismiss;
• in motions for summary judgment; or
• in post-hearing submissions.

Once judicial review actions are initiated, they can be tested through motions to dismiss if, for example, the petitioner cannot show legal standing in the form of an injury in fact or if the orders on review are not final. These motions to dismiss (which are usually filed under a schedule adopted by the court of appeals or a district court under federal law) can serve as a sifting process to ensure courts are not burdened by frivolous appeals.

Courts may expedite their own procedures based on a showing of good cause. Material expedition should always be considered unlikely, however, given the fact that most courts, and in particular most federal courts, face tight deadlines and extensive workloads. Courts may also stay agency action but historically the test for doing so requires that the movant show the following:

• a likelihood of success on the merits;
• the existence of irreparable harm to the movant (“mere” monetary damages would not be irreparable harm);
• the lack of harm to third parties from the stay; and
• that the stay serves the public interest (Virginia Petroleum Jobbers v FPC, 259 F.2d 921 (D.C. Cir. 1958)).

In most cases involving judicial review of agency action, the technical function of the reviewing court is to examine the basis for the agency action, such as whether the agency action:

• was arbitrary and capricious;
• was an abuse of discretion;
• complied with constitutional requirements;
• conformed to statutory directive;
• complied with the limits placed by Congress on agency action;
• complied with the formal requirements of the APA; or
• was supported by substantial evidence and the product of reasoned decision-making.

The task of the reviewing court is not to substitute its own judgment for that of the agency. That said, while the standard of review has not changed, federal courts have recently discontinued their long-standing practice of deferring to the interpretations of federal executive agencies of ambiguous statutes they administer under the so-called Chevron deference doctrine (see Loper Bright Enterprises v Raimondo, 603 U.S. 369 (2024)).

The US has a written constitution under which challenges to federal and state agency action may be brought. See 3.1 Challenging Primary Legislation for a discussion of this topic.

Courts do not typically overturn “harmless” agency error. See 5 USC Section 706(2) (“[D]ue account shall be taken of the rule of prejudicial error.”). Thus, claims based on the failure to follow relevant procedure must usually meet a materiality threshold. In other words, the procedural error must have resulted in harm to the party affected by it and be more than a technical oversight. The failure (for example) to address contrary evidence submitted by a party in a written decision, however, can be evidence of a lack of reasoned decision-making and likely would be strictly scrutinised on judicial review.

Factual errors made by an agency must be shown to be material and to be part of a larger pattern of engaging in unreasoned decision-making or arbitrary and capricious conduct. The test frequently applied by reviewing courts is whether a decision is supported by substantial evidence; agency action need not be perfect in all instances.

One of the most common bases for seeking judicial review of agency action is the claim that an agency engaged in conduct that constituted an abuse of discretion (see 5 USC Section 706(2)(A)).

It is theoretically possible to bring a claim that an agency decision-maker was biased but such a claim is very difficult to prove. One reason for this is that agency action generally is protected by the deliberative process privilege (see 5 USC Section 522(b)(5); see, also, eg, US Fish & Wildlife Service v Sierra Club, 592 U.S. 261 (2021)). The deliberative process privilege makes it difficult (in the absence of external evidence proving a claim of bias) to prove such a claim without reference to an agency’s internal document. To the extent agency action acts in a way that potentially impedes a party’s due process rights, however, US constitutional Fifth and Fourteenth Amendment rights as well as procedural requirements of the APA could be implicated.

It is possible to bring a challenge to agency action based on unequal treatment. Such claims should be evaluated against the relevant statutory framework. If the statute recognises claims based on undue discrimination or similar limitations, a claim might be possible.

The United States is not a signatory to the European Convention on Human Rights. The United States has adopted the UN Declaration on Human Rights, but federal courts have held that international agreements do not create private rights of action in US courts (see Gandara v Bennett, 528 F.3d 823 (11th Cir. 2008); Jones v Ramos, 2023 U.S. Dist. LEXIS 19492 (M.D. Fla. Feb. 6, 2023)). While the United States is party to certain international human rights treaties, such as the International Covenant on Civil and Political Rights, the US often qualifies such treaties to be non-self-executing (ie, not directly enforceable in US court without Congressional action first incorporating them into US law). The United States Alien Tort Statute, 28 USC Section 1350, does provide for claims to be heard in US courts based on alleged violations of customary international law, but that statute was found not to have extraterritorial effect (in Kiobel v Royal Dutch Petroleum Co, 569 U.S. 108 (2013); Nestle v Doe, 593 U.S. 628 (2021)).

Violations of federal constitutional rights by US state or local officials may be challenged in a proceeding under 28 USC Section 1983 and, if successful, such claims can result in damages or injunctive relief. Claims against federal officials also may be brought in cases involving alleged violations of due process, unreasonable searches and seizures or alleged cruel and unusual punishment, each in violation of the Constitution of the United States (see Bivens v Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)). Domestically, discrimination complaints can be filed against federal agencies through the Equal Employment Opportunity Office, whose decisions are subject to an appeals process and court review.

Proportionality, as that term is used in Europe, is not a term in wide currency in American law. That said, US constitutional law principles under the due process clause and similar principles seem to advance related aims. For a detailed discussion, see E. Sullivan and T. Frase, Proportionality Principles in American Law: Controlling Excessive Government Actions (2008).

The grounds of challenge reviewed seem to be reasonably comprehensive, recognising the variety of regulatory regimes in the US federal system.

US courts may decline to resolve so-called political questions. The Supreme Court explained the contours of this exception to federal jurisdiction in Baker v Carr, 369 U.S. 186, 217 (1962): “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

Agencies typically explain the bases for their decisions in their orders. The failure to do so can be grounds for reversal. A reviewing court can only uphold agency action on the grounds the agency itself relied on; an agency cannot supply new grounds for its action in the context of judicial review (see SEC v Chenery Corp, 318 U.S. 80 (1943)).

In judicial review proceedings in US district court, agencies can explain their defences in motions to dismiss a complaint, in an answer to the complaint or in subsequent motions for summary disposition. If no dispositive relief is granted, the statement of defence will be presented at trial and in post-hearing briefs. In cases in the US court of appeals, agencies will generally file a single answering brief. The petitioner must file an initial brief and has the right to file a reply brief.

The most typical defences routinely raised in administrative review proceedings are:

• petitioner lacks standing;
• the orders are not final;
• in cases where rehearing is required, an issue was not properly preserved in an application for rehearing;
• an objection was not presented to the agency and may not be raised for the first time on appeal.

See 9.7 Expedited Proceedings.

The availability of monetary damages or other financial relief varies depending on the specific statute under which a claim arises. For economic regulatory statutes (CFTC, SEC, FERC, DOE) the answer is generally negative, but agencies do have broad powers to order refunds of prior overpayments or to correct agency errors.

US courts exercise the power of judicial review within the limits set by the US Code. For cases falling within their jurisdiction, they have the power to grant declaratory relief including the ability to invalidate a statute that is contrary to the US Constitution. Courts do not have free-standing power to veto legislation with which they may disagree.

US courts generally will remand cases to agencies for further consideration of what an appropriate remedial action would be. Directing a verdict on remand is not a usual practice, at least in federal law. Agency action that is unreasonably delayed or that fails to respond to issues identified by a court could in theory prompt more tailored actions on remand. In extraordinary circumstances, federal appellate courts may issue writs of mandamus under the All Writs Act, 28 USC Section 1651(a). 

See 13.3 Mandating Government Action Through Court Orders.

In practical terms there are no meaningful mechanisms that will protect claimants from excessive costs, particularly in connection with larger scale government investigations.

Courts have discretion to depart from “loser pays” arrangements in public interest cases. The following all provide for some degree of legal fee shifting if a party prevails in litigation:

• Freedom of Information Act;
• Equal Access to Justice Act;
• Clean Air Act;
• Voting Rights Act; and
• Civil Rights Fees Act.

An attorney who unreasonably and vexatiously files multiple proceedings can be sanctioned under 28 USC Section 1927. In addition, truly improper and unreasonable conduct may be subject to a request for sanctions under Federal Rule of Civil Procedure 11.

A US district court decision issued by a federal court of appeals can be appealed to the circuit court of appeals having jurisdiction over the district court. A circuit court of appeals decision on judicial review of agency action may be appealed to the US Supreme Court. State procedures vary widely.

See 15.1 Right to Appeal.

Permission to appeal need not be obtained from a lower court other than for interlocutory (ie, non-final) appeals.

An appeal from a US district court is taken to a circuit court of appeals. The court of appeals decision generally is issued by a three-judge panel. A request for rehearing or rehearing en banc can be filed at the circuit court level. Such filings are rarely granted. The next and last step in the review process is a petition for certiorari to the US Supreme Court.