USA Law and Practice Contributed by: Mark Haskell and Lamiya Rahman, Blank Rome, LLP
(D.D.C. 2012) (vacating CFTC position limit rules because the agency failed to consider whether it was required to first determine that position lim - its were economically necessary before promul - gating them). More recently, the Supreme Court has overturned agency action under the “major questions doctrine” , where the challenged regu - lation 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)). 3.3 Government Decisions Affecting Sole Individuals There is no numerosity requirement to seek judi - cial review of administrative action in the United States. Federal and state regulatory enforce - ment actions typically focus on a limited number of respondents, often only one. Similarly, admin - istrative benefits claims (social security and dis - ability 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. 3.4 Agreements Between Private Entities and Public Bodies Examples of private law agreements between public bodies and private entities in the US include consent decrees entered into after litiga - tion has been filed and enforcement settlements. For a general overview of the operation of con - sent decrees in the US, see Tobias Wolf, Consent Decrees and Federal Jurisdiction, 84 U. Pitts - burgh 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 Comprehen - sive Environmental Response, Compensation,
and Liability Act provides for statutory interven - tion 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 settle - ments reached before litigation may either per - mit 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 agree - ments in the context of government contract - ing, which may also be subject to challenge. The Tucker Act, 28 USC Section 1491, provides the US Court of Federal Claims with jurisdic - tion 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). 3.5 Challenging Decisions Without Legal Effect 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 Fed - eral 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)). Interpre - tive statements or guidelines similarly have no legal effect and are not appropriate subjects for judicial review (see American Tort Reform Asso - ciation v Occupational Safety & Health Admin - istration, 738 F.3d 387 (D.C. Cir. 2013)). Note,
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