CHAPTER 1 WHAT ACTIONS MAY BE CHALLENGED: THE DECEPTIVELY COMPLEX CONCEPT OF FINAL AGENCY ACTION
| Jurisdiction | United States |
(Sep 2016)
WHAT ACTIONS MAY BE CHALLENGED: THE DECEPTIVELY COMPLEX CONCEPT OF FINAL AGENCY ACTION
Winston S. Howard Distinguished Professor of Law
University of Wyoming College of Law
Co-Director of the Center for Law and Energy Resources in the Rockies
Laramie, WY
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SAM KALEN is the Winston S. Howard Distinguished Professor, at the University of Wyoming College of Law. Prior to joining the faculty, Professor Kalen practiced in Washington, D.C. for over 20 years, both in the private and public sectors. He practiced at an energy, environment, and natural resources law firm, and worked in the Solicitor's Office at the Department of the Interior. He also has held various teaching positions at the University of Baltimore, Florida State University, Washington & Lee University, and Penn State University. Immediately after law school, Professor Kalen began his career as a law clerk for Justice Warren D. Welliver of the Missouri Supreme Court. Professor Kalen's research focuses on the fields of energy, environment, public lands and natural resources, administrative law, and constitutional law. He has published a variety law review articles, chapters in books, and is a co-author on two books. He also is active in the American Bar Association's Section on Environment, Energy, and Resources.
Challenging federal agency decisions has become considerably more complex as the Roberts Court confronts many administrative law principles that are in flux.1 The Court, in particular, has recently triggered another round of conversations about the efficacy of the Chevron doctrine, it began to engage in a dialogue about continued reliance on what is called Auer deference for agency interpretation of regulations. It also recently informed administrative law litigants that prudential standing was a misnomer (Lexmark Int'l v. Static Control), and that Article III standing precepts for establishing individual injury and concreteness persist for procedural claims (Spokeo v. Robins). And it affirmed that agency interpretive rules, styled and accepted as such, are not subject to Administrative Procedure Act (APA) notice and comment requirements (Perez v. Mortgage Bankers Ass'n). With Justice Scalia's death, how administrative law principles will continue to unfold remains unclear.
But one facet of administrative law, in particular, the issue of "finality," seemingly appears to have eluded scrutiny while remaining troublesome for many forms of agency processes. A fundamental precept for most challenges involving federal administrative agency actions is
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establishing the presence of a "final" action susceptible of judicial review. The APA waives the sovereign immunity of the United States, when another statutory mechanism for judicial review is unavailable and review is otherwise not precluded nor unavailable because the matter is committed to the agency's discretion.2 While there is a presumption favoring review, that presumption applies under Section 704 of the APA to "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court."3
Finality & Bennett's Two Conditions
Modern finality analysis is informed by the two-pronged test announced by Justice Scalia in Bennett v. Spear.4 The case involved a challenge by irrigation districts and individuals concerned with the implementation of the Endangered Species Act (ESA) for the operation of the Bureau of Reclamation (BOR) Klamath reclamation project. Pursuant to the ESA, the United States Fish and Wildlife Service (USFWS) issued a biological opinion (BO) concluding that the project was likely to jeopardize the continued existence of two ESA listed species, unless BOR adopted USFWS's suggested reasonable and prudent alternative. Until the Court's decision, BO's were considered advisory--perhaps persuasive about whether jeopardy under the ESA was likely, but not necessarily binding and not themselves actionable.5 And the ESA prohibits agencies, such as BOR, from engaging in activities (authorizing, funding, or carrying out) when doing so would
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likely jeopardize protected species. As the case progressed from the district court to the court of appeals, a threshold issue was whether the plaintiffs possessed standing to prosecute the case under the ESA. Because the lower court concluded that plaintiffs here were not using the ESA to promote species conservation, it held that they lacked standing under the zone of interest test.
Once the Supreme Court concluded otherwise, that plaintiffs had standing, it then confronted whether the BO was a final agency action susceptible to judicial review--only a minor part of the opinion. The United States argued that the matter was neither ripe nor final, with potentially overlapping analysis. The plaintiffs, according to the government, had to wait until the BOR acted in response to the BO and in accordance with its own procedural and statutory program. The plaintiffs, though, claimed that the BO had a determinative effect, particularly the incidental take part of the BO authorizing a level of take (to avoid ESA Section 9 liability). That assessment of the BO was critical for establishing standing and it then infected the analysis for whether the BO constituted a final agency action. Parroting language from the plaintiffs' brief, the Court observed that the BO had "direct and appreciable legal consequences"6 and, as such, was a final agency action under the APA. The Court applied what it described as "two conditions" that "must be satisfied for agency action to be 'final': First, the action must mark the 'consummation' of the agency's decisionmaking process, . . . -it must not be of a merely tentative or interlocutory nature. And second, the action must one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.'"7 These requirements purportedly reflect the Court's pragmatic approach toward judicial review announced earlier in Abbott Laboratories v. Gardner.8
Following Bennett
Quite often, whether a particular agency decision is final under Bennett's two-pronged test becomes a significant hurdle confronting litigants. In a host of circumstances, parties objecting to an agency's assertion of jurisdiction explore various options for securing judicial review in advance of arguably an otherwise final agency action. The array of circumstances where the issue arises is quite broad. When, for
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instance, the National Indian Gaming Commission (NIGC) issued a notice of violation (NOV) to the Fort Sill Apache Tribe in its operation of the Apache Homelands Casino, the Tribe ceased operations and appealed the NOV to the NIGC. After a few years without a decision on the appeal, the Tribe filed its federal court complaint and the NIGC filed a motion to dismiss. The court rejected the Tribe's claim that NOV was a de facto final agency action, even though the Tribe presented a persuasive argument about how the NOV already had adversely affected it.9 When the proponents of the Pebble Mine in Alaska objected to the Environmental Protection Agency's (EPA's) commencement of a process to explore whether to withdraw the Alaska mining site from the possibility of securing a Clean Water Act (CWA) Section 404 permit from the U.S. Army Corps of Engineers, the court dismissed the case for lack of a final agency action.10 Or, when EPA issued interim findings on whether to withdraw the authority for the State of Alabama to administer the CWA Section 402 National Pollution Discharge Elimination System program, a court held that a review of the agency's interim finding was not a reviewable final determination.11 Indeed, instances where either claims or cases are thwarted by a party's failure to identify a final agency action are not only varied but numerous.12
Finality, therefore, often becomes a prominent aspect of cases involving challenges to agency letters, statements, policies, guidance documents, or interpretative regulations.13 The D.C. Circuit, in
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particular, began addressing finality as part of its effort to resolve challenges to agency guidance documents. When the court, in 2000, initially exhibited frustration with increasing reliance on guidance documents, it first had to resolve whether such documents were subject to judicial review as final agency actions. In Appalachian Power Co. v. EPA,14 it held that it could review a Resource Conservation and Recovery Act guidance document, because the agency had failed to follow APA notice-and-comment rulemaking. EPA objected to the challenge, arguing that the court lacked jurisdiction because the guidance was not a final rule, reviewable before the D.C. Circuit.15 The court disagreed, and explained how such guidance documents might be binding in a practical sense. The court further concluded that the guidance reflected the agency's settled position--one that would need to be followed in future circumstances.16 Yet, according to the court, simply because something may be binding, it does not necessarily become final. Two elements must be satisfied for finality: first, the action "`must mark the consummation of the agency's decision-making process,"' and second, it must be one that determines "rights or obligations" or from "which 'legal consequences will flow.'"17 Here, both elements were present. The document was not a draft and it contained mandatory commands. In rejecting the boilerplate language in the document that it was not final and could not be relied upon to create any enforceable rights, the court noted that the "entire Guidance, from beginning to end-except the last paragraph-reads like a ukase. It commands, it requires, it orders, it dictates."18
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Like guidance documents, letters or other similar forms of agency communications might precipitate...
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