USA Law and Practice Contributed by: Mark Haskell and Lamiya Rahman, Blank Rome, LLP
10.6 Bias 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 & Wild - life Service v Sierra Club, 592 U.S. 261 (2021)). The deliberative process privilege makes it diffi - cult (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 require - ments of the APA could be implicated. 10.7 Unequal Treatment It is possible to bring a challenge to agency action based on unequal treatment. Such claims should be evaluated against the relevant statu - tory framework. If the statute recognises claims based on undue discrimination or similar limita - tions, a claim might be possible. 10.8 Human Rights 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 pri - vate 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 trea - ties, 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 offi - cials also may be brought in cases involving alleged violations of due process, unreason - able 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. 10.9 Proportionality 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 discus - sion, see E. Sullivan and T. Frase, Proportionality Principles in American Law: Controlling Exces - sive Government Actions (2008). 10.10Additional Grounds The grounds of challenge reviewed seem to be reasonably comprehensive, recognising the variety of regulatory regimes in the US federal system.
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