USA Law and Practice Contributed by: Mark Haskell and Lamiya Rahman, Blank Rome, LLP
stay agency action but historically the test for doing so requires that the movant show the fol - lowing: • 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 (Vir - ginia Petroleum Jobbers v FPC, 259 F.2d 921 (D.C. Cir. 1958)). 10. Grounds 10.1 Scope of Judicial Review: Merits v Process 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 sub - stitute its own judgment for that of the agency. That said, while the standard of review has not changed, federal courts have recently discontin - ued 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)). 10.2 Constitutional Challenge 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. 10.3 Procedural Errors Courts do not typically overturn “harmless” agency error. See 5 USC Section 706(2) ( “[D] ue account shall be taken of the rule of preju- dicial error.” ). Thus, claims based on the failure to follow relevant procedure must usually meet a materiality threshold. In other words, the pro - cedural 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 writ - ten decision, however, can be evidence of a lack of reasoned decision-making and likely would be strictly scrutinised on judicial review. 10.4 Factual Errors 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. 10.5 Abdication or Fettering of Discretion One of the most common bases for seeking judi - cial 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)).
240 CHAMBERS.COM
Powered by FlippingBook