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 An agency’s prosecutorial discretion is subject to review under a patent abuse of discretion standard. This standard makes it almost impossible for the regulated party to prevail on a discriminatory enforcement claim.  


In Moog Industries v. Federal Trade Commission 355 U. S. 411 (1958), the court set forth the principles which must govern a review of the action taken by the court below: the decision as to whether to postpone enforcement of a cease and desist order 'depends on a variety of factors peculiarly within the expert understanding of the Commission.' 355 U.S. at 355 U. S. 413. Thus, 'although an allegedly illegal practice may appear to be operative throughout an industry, whether such appearances reflect fact' is a question 'that call[s] for discretionary determination by the administrative agency.' Ibid. Because these determinations require the specialized experienced judgment of the Commission, they cannot be overturned by the courts 'in the absence of a patent abuse of discretion.' 355 U.S. at 355 U. S. 414. Consequently, the reviewing court's inquiry is not whether the evidence adduced in support of a petition for a stay tends to establish certain facts, such as that ...

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