General Note on the Relationship Between OFAC's Regulatory Practices and the “Fair Notice” / “Fair Warning” Requirements of the U.S. Constitution and Administrative Procedure Act
1) OVERVIEW – AGENCY DEFERENCE AND CERTAIN PROCESS-BASED LIMITATIONS THEREON
OFAC-issued penalty notices and other “final agency actions” are subject to judicial review under the Administrative Procedure Act (APA) (5 U.S.C. § 704). Section 706 of the APA requires reviewing courts to “hold unlawful and set aside agency action, findings, and conclusions found to be,” inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (§ 706(2)(A)), “contrary to constitutional right, power, privilege, or immunity” (§ 706(2)(B)), or “in excess of statutory…authority, or limitations…” (§ 706(2)(C)).
OFAC’s enforcement actions are also subject to the requirements of the “due process” clause of the Fifth Amendment to the U.S. Constitution. Due process-based challenges to OFAC actions...