USA Law and Practice Contributed by: Mark Haskell and Lamiya Rahman, Blank Rome, LLP
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 inde - pendent subject matter jurisdiction to courts); • subject matter specific statutory regimes such as the Securities Exchange Act; Federal Power Act; Natural Gas Act; and Commod - ity 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 particu - lar 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). 1.2 Forum for Judicial Review 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 agen - cy action to “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the mean- ing of a relevant statute…” (5 USC Section 702). Only final agency action is subject to judicial review, but objectionable intermediate or pro - cedural rulings can be reviewed in connection with review of the final agency action (5 USC Section 704). 2. Target of Challenge 2.1 Determining Susceptibility The twin requirements of aggrievement and final - ity have generated material litigation. Until the 2023 US Supreme Court decision in Axon Enter - prise, 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 liti - gate and lose the agency proceedings and only
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