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Under the APA, a case is ripe for judicial review if an agency’s conduct constitutes a “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. See Top Choice Distribs., Inc. v. United States Postal Serv., 138 F.3d 463, 466 (2d Cir. 1998). The Supreme Court has set forth a two part test for identifying a final agency action. “First, the action must mark the consummation of the agency’s decision making process - it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted). See also Abbott Labs., 387 U.S. at 148-49 (observing that the “problem is best seen in a two-fold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration”). 


In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency. Article I, § 1, of the Constitution vests '[a]ll legislative ...

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