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Agency Settlement Reviewability, Dustin Plotnick

Fordham Law Review

Administrative agency settlements have recently come under increased judicial scrutiny. Agency actions are presumptively reviewable under the Administrative Procedure Act (APA), which means they are generally subject to, among other requirements, “arbitrary and capricious” review under 5 U.S.C. § 706(2) and Motor Vehicles Manufacturing Ass’n of the United States v. State Farm Mutual Automobile Insurance Co. In contrast, the U.S. Supreme Court held in Heckler v. Chaney that agency no–action decisions are presumptively unreviewable because they are “committed to agency discretion by law” under 5 U.S.C. § 701(a)(2). Are agency settlements also presumptively unreviewable? In other words, are they more …