§ 21.4 Administrative Actions Eligible for Judicial Review

• Jurisdiction: Washington

§21.4 ADMINISTRATIVE ACTIONS ELIGIBLE FOR JUDICIAL REVIEW

Generally, the relevant statute limits the right to judicial review to final administrative action. Even if the statute is not clear on the point, finality is usually the consequence of requiring that administrative remedies be exhausted before seeking relief in court. See Citizens for Clean Air v. City of Spokane, 114 Wn.2d 20, 27-33, 785 P.2d 447 (1990);

Wells Fargo Bank, NA v. Dep't of Revenue, 166 Wn. App. 342, 358, 271 P.3d 268, review denied, 175 Wn.2d 1009 (2012); R/L Assocs., Inc. v. City of Seattle, 61 Wn. App. 670, 674-78, 811 P.2d 971, review denied, 117 Wn.2d 1024 (1991).

(1) What is "final" agency action?

An agency action is final for purposes of judicial review if it "'impose[s] an obligation, den[ies] a right, or fix[es] some legal relationship as a consummation of the administrative process.'" Dep't of Ecology v. City of Kirkland, 84 Wn.2d 25, 29-30, 523 P.2d 1181 (1974) (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S. Ct. 431, 92 L. Ed. 568 (1948)); Wells v. Olsten Corp., 104 Wn. App. 135, 145, 15 P.3d 652 (2001). In adjudications, this typically means the agency's final order. For matters addressed without a hearing, an agency letter may constitute final agency action for purposes of judicial review, if that is the last stage of the process. Wells Fargo Bank, NA v. Dep't of Revenue, 166 Wn. App. 342, 358, 271 P.3d 268 (agency letter denying interest on an agreed tax settlement amount constituted final agency action for purposes of judicial review under the state Administrative Procedure Act), review denied, 175 Wn.2d 1009 (2012). In DaVita, Inc. v. Department of Health, 137 Wn. App. 174, 181, 151 P.3d 1095 (2007), the court ruled that a written agency order was the action subject to judicial review, rather than a prior agency written evaluation of an application, because the order "finally determine[d]" the rights of the parties. The earlier written evaluation was simply an intermediate step in the process.

Caveat: It is also possible for an agency's initial order to become the agency's final order by the passage of time, so care should be taken to review the applicable rules in this regard. For example, according to WAC 388-02-0525, in most cases, an initial decision of an administrative law judge for the Department of Social and Health Services (DSHS) becomes the final order of the agency if a party does not request review by the DSHS Board of Appeals. In other, albeit rare, circumstances, administrative law judges have been given the authority to make final decisions for the agency. See, e.g., RCW 49.60.250(5), (7) (law against discrimination).

The Land Use Petition Act, Ch. 36.70C RCW, codifies this concept of finality by prescribing that a decision is final when it is made by the person who has "the highest level of authority to make the determination." RCW 36.70C.020(2). The identity of the final decision maker depends on the procedures applicable to the particular governmental entity making the land use decision.

Under LUPA, a "final" decision concludes a matter by determining whether or not a person is entitled to receive the permit or approval applied for. Samuel's Furniture, Inc. v. State, 147 Wn.2d 440, 452, 54 P.3d 1194 (2002). The nature of the agency action, not the form, is what makes a decision final. For example, a letter from an agency can qualify as final agency action if it is "clearly understandable as a final determination of rights." WCHS, Inc. v. City of Lynnwood, 120 Wn. App. 668, 679, 86 P.3d 1169, review denied, 152 Wn.2d 1034 (2004). But the adoption of an ordinance that grants local authorities discretion regarding enforcement is not a final determination under LUPA. Horan v. City of Federal Way, 110 Wn. App. 204, 209, 39 P.3d 366, review denied, 147 Wn.2d 1005 (2002). Nor is the denial of an incomplete application appealable under LUPA, because it does not constitute a final determination. WCHS, 120 Wn. App. 668. A decision that otherwise would have been the final "land use decision" is not final when the local jurisdiction allows a motion for reconsideration and a reconsideration motion is timely filed; in that circumstance, the decision on reconsideration constitutes the final "land use decision." RCW 36.70C.020(2)(c); Mellish v. Frog Mountain Pet Care, 172 Wn.2d 208, 213-20, 257 P.3d 641 (2011).

However, a preliminary land use approval may constitute a "land use decision" that can be appealed under LUPA even though further approvals may be required before a proposed land use can be accomplished. See Knight v. City of Yelm, 173 Wn.2d 325, 340-46, 267 P.3d 973 (2011) (preliminary approval as the first step in subdivision approval); Hale v. Island County, 88 Wn. App. 764, 768-69, 946 P.2d 1192 (1997) (preliminary approval as the first step in a two-step process for obtaining a site-specific rezone).

Comment: In Samuel's Furniture, the court stated, "[a] land use decision is not 'final' within the meaning of LUPA unless '[t]he petitioner has exhausted his or her administrative remedies to the extent required by law.'" 147 Wn.2d at 469 (quoting RCW 36.70C.060(2)(d)). This statement commingles the concept of finality with the ability of the petitioner to seek judicial review. Under LUPA, exhaustion is an element the petitioner must satisfy to establish standing, not finality. RCW 36.70C.060(2)(d).

(a) No judicial review of interlocutory orders

An interlocutory order is an agency order issued during a controversy deciding "some point or matter, but [it] is not a final decision of the whole controversy." Samuel's Furniture, 147 Wn.2d at 452 (internal quotation marks omitted). Interlocutory orders are "preliminary steps" in the process and are not subject to judicial review until the final order is issued. Lewis County v. Pub. Emp't. Rel. Comm'n, 31 Wn. App. 853, 862, 644 P.2d 1231, review denied, 97 Wn.2d 1034 (1982). For example, because land use decisions subject to judicial review under LUPA must be "final determination[s]," RCW 36.70C.020, the Court of Appeals has observed that interlocutory review of interim decisions is precluded. Pacific Rock Envtl. Enhancement Grp. v. Clark County, 92 Wn. App. 777, 781, 964 P.2d 1211 (1998) ("[I]f the Legislature had intended to provide review of [interlocutory] procedural decisions within the act, it would have done so.").

Unlike discretionary review in the appellate courts (e.g., RAP 2.3(a)), there is no general law authorizing the superior courts to review interlocutory or other nonfinal decisions of administrative agencies. See, e.g., Wells v. Olsten Corp., 104 Wn. App. 135, 145-46, 15 P.3d 652 (2001). In judicial review of administrative decisions, the court adopts the same concept of finality as generally applies in appellate practice: "A final decision is one which leaves nothing open to further dispute and which sets at rest cause of action between parties." Samuel's Furniture, 147 Wn.2d at 452 (internal quotation marks omitted). A party may not evade the requirement of finality by filing a declaratory judgment action in superior court on an issue present in a pending administrative adjudication. The declaratory judgment action will be dismissed under the "priority of action" rule. See City of Yakima v. Int'l Ass'n of Fire Fighters, 117 Wn.2d 655, 675, 818 P.2d 1076 (1991).

(b) Federal "collateral order" doctrine

The United States courts of appeal have jurisdiction to review only final orders of United States district courts. 28 U.S.C. §1291. Nonetheless, judicial review of an agency's interlocutory order has been permitted under the federal "collateral order" doctrine. To qualify, the agency order must "[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment." Johnson v. Jones, 515 U.S. 304, 309-12, 115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995) (internal quotation marks omitted).

We have located no reported decisions in Washington adopting or addressing the collateral order doctrine.

(2) Agency action reviewable under the APA

In general, the Administrative Procedure Act, Ch. 34.05 RCW, is the exclusive means for judicial review of state agency action. RCW 34.05.510; Diehl v. W. Wash. Growth Mgmt. Hearings Bd., 153 Wn.2d 207, 213, 103 P.3d 193 (2004); Judd v. Am. Tel. & Tel. Co., 152 Wn.2d 195, 204, 95 P.3d 337 (2004); Gaines v. Dep't of Emp't Sec, 140 Wn. App. 791, 796, 166 P.3d 1257 (2007); Costanich v. Dep't of Soc. & Health Servs., 138 Wn. App. 547, 554, 156 P.3d 232 (2007), rev'd on other grounds, 164 Wn.2d 925, 194 P.3d 988 (2008).

The exclusive nature of APA judicial review procedures is interpreted strictly. Neah Bay Chamber of Commerce v. Dep't of Fisheries, 119 Wn.2d 464, 468-69, 832 P.2d 1310 (1992). Thus, if the APA covers the agency action at issue, i.e., if the statutory and case law exclusions do not apply, then the review procedures contained in other statutes do not apply. See Hillis v. Dep't of Ecology, 131 Wn.2d 373, 381, 932 P.2d 139 (1997); Wells Fargo Bank, NA v. Dep't of Revenue, 166 Wn. App. 342, 358, 271 P.3d 268 (court evaluates various exclusions and exemptions and concludes the APA applies to a letter denying interest on a tax settlement amount), review denied, 175 Wn.2d 1009 (2012). Thus, if the APA covers the agency action at issue—i.e., if the statutory and case law exclusions do not apply—then review procedures in other statutes do not apply. See Hillis v. Dep't of Ecology, 131 Wn.2d 373, 381, 932 P.2d 139 (1997).

The APA applies to most state agencies. "Agency" means:

[A]ny state board, commission, department, institution of higher education, or officer, authorized by law to make rules or conduct adjudicative proceedings, except those in the legislative or...