Section 93 Abuse of Discretion

• Library: Administrative Law 2011

“[A]buse of discretion” review, in addition to the arbitrary or capricious standard, is provided for in 5 U.S.C. § 706(2)(A). There is no clear distinction among the terms “arbitrary, capricious” or “abuse of discretion” in the APA. See Ronald M. Levin, Scope-of-Review Doctrine Restated: An Administrative Law Section Report, 38 Admin. L. Rev. 239, 292 (1986). Both standards restrain judicial scrutiny of administrative action and allow the agency considerable decision-making freedom. In identifying agency action that constitutes an abuse of discretion, courts have suggested that the same conduct could also be covered by the arbitrary or capricious standard.

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