Final Agency Action in the Administrative Procedure Act

November
2017
Stephen Hylas

Under section 704 of the Administrative Procedure Act, courts can only review agency actions when they are “final.” In Bennett v. Spear, the Supreme Court put forth a seemingly simple two-part test for assessing final agency action. However, the second prong of that test—which requires agency actions to “create rights or obligations from which legal consequences flow” to be final—poses several problems. Most importantly, because it overlaps with the legal tests for whether a rule is a legislative rule or a nonbinding guidance document, it seems to effectively bar courts from reviewing nonlegislative rules before agencies have taken enforcement action. Because of this overlap, the Bennett test conflicts with—and thus undercuts—other principles of administrative law that seem to promote a pragmatic, flexible approach for courts to use in determining whether, when, and how to review agency rules. The result is a confusing standard of review that can prevent plaintiffs from challenging agency rules in court, especially when those plaintiffs are beneficiaries of regulation who will never be subject to enforcement action down the road. At the same time, however, courts should not be able to review every single agency rule before it is enforced. Agencies should be able to experiment, but should not be permitted to indefinitely shield potentially dangerous deregulatory programs from judicial review, as Bennett seems to allow. Accordingly, this Note argues that to be faithful to the Court’s commitment to “pragmatic” interpretation of the finality requirement, lower courts should follow a two-pronged approach to analyzing questions of final agency action. When courts can compel an agency to finalize its allegedly temporary action because of “unreasonable delay,” they should interpret Bennett’s second prong formally, holding that only truly legally binding action can be final. If this bars some plaintiffs from suing now, they will be able to challenge the rule later when the agency’s process is finished. But when courts cannot force agencies to finalize their rules, they should construe Bennett functionally, conceptualizing the agency’s allegedly temporary action under a “practically binding” standard. Under this framework, if the agency’s “temporary” action in practice consistently follows certain criteria, it should be viewed as binding and final under Bennett, and thus subject to judicial review, regardless of what the agency or its employees are legally required to do. This two-pronged approach would help to strike the right balance between the private party and the agency in a practical manner that depends upon the context.

 

This article appears in the November 2017 Issue: Volume 92, Number 5