USA Law and Practice Contributed by: Mark Haskell and Lamiya Rahman, Blank Rome, LLP
9.3 Time Limits 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 chal - lenged 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 Sec - tion 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 Sys - tem, 603 U.S. 799 (2024)). 9.4 Evidence Required to Initiate a Claim The material to be provided in an initial challenge to an administrative action varies depending on the nature of the claim and the underlying regu - lation. 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 jurisdic - tion; • 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 proce -
dures and filing requirements to initiate a com - plaint or petition for review of agency action. 9.5 Procedural Stages Legal arguments and evidence will first be sub - mitted before an administrative agency pursuant to the procedures the agency elects to adopt, as discussed, which could include a paper hear - ing 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 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 sched - ule 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. 9.7 Expedited Proceedings • in post-hearing submissions. 9.6 Initial Sifting Process 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 dead - lines and extensive workloads. Courts may also
239 CHAMBERS.COM
Powered by FlippingBook