USA Law and Practice Contributed by: Mark Haskell and Lamiya Rahman, Blank Rome, LLP
10.11Exempt Decisions US courts may decline to resolve so-called polit - ical questions. The Supreme Court explained the contours of this exception to federal jurisdic - tion in Baker v Carr, 369 U.S. 186, 217 (1962): “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independ- ent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adher- ence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” 11. Defence 11.1 Timing and Grounds of Defence Agencies typically explain the bases for their decisions in their orders. The failure to do so can be grounds for reversal. A reviewing court can only uphold agency action on the grounds the agency itself relied on; an agency cannot supply new grounds for its action in the context of judicial review (see SEC v Chenery Corp, 318 U.S. 80 (1943)). In judicial review proceedings in US district court, agencies can explain their defences in motions to dismiss a complaint, in an answer to the complaint or in subsequent motions for sum - mary disposition. If no dispositive relief is grant - ed, the statement of defence will be presented at trial and in post-hearing briefs. In cases in the
US court of appeals, agencies will generally file a single answering brief. The petitioner must file an initial brief and has the right to file a reply brief. The most typical defences routinely raised in administrative review proceedings are: • in cases where rehearing is required, an issue was not properly preserved in an application for rehearing; • an objection was not presented to the agency and may not be raised for the first time on appeal. • petitioner lacks standing; • the orders are not final; 12. Interim Relief 12.1 Common Forms of Interim Relief See 9.7 Expedited Proceedings . The availability of monetary damages or other financial relief varies depending on the specific statute under which a claim arises. For econom - ic regulatory statutes (CFTC, SEC, FERC, DOE) the answer is generally negative, but agencies do have broad powers to order refunds of prior overpayments or to correct agency errors. 13.2 Invalidating Legislation US courts exercise the power of judicial review within the limits set by the US Code. For cases falling within their jurisdiction, they have the power to grant declaratory relief including the ability to invalidate a statute that is contrary to the US Constitution. Courts do not have free- 13. Remedies 13.1 Damages
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