Timing of Review

• Pages: 115-131
• Author: Richard J. Pierce, Jr.

115

Chapter 8

TIMING OF REVIEW

A. Introductory Overview

An agency action cannot be reviewed by a court until it is final,

ripe for review, and the petitione r has exhausted administrative

remedies. The three doctrines that together determine whether an

agency action that is otherwise reviewable is reviewable at the

present time and in its present posture differ in their emphasis and

in the decisional factors they incorporate. Each is discussed as a

discrete doctrine in sections B, C, and D of this chapter. Functionally,

however, the three doctrines ove rlap—whenever the facts and

circumstances suggest that one is available, plausible argumen ts

usually can be made with respect to each of the other two. This poses

a challenge to a petitioner, since it can only obtain review if it prevails

with reference to each of the three doctrines, while the government

can delay revie w of the action at issue—sometimes for years—by

prevailing with respect to only one of the three. The functional

overlap among the three timing doctrines is illustrated particularly

well by the opinio ns issued by a panel of the D.C. Circuit in 1987 in

Ticor Title Insurance Co. v. FTC.

1

Each of the three judges agreed

that the agency action at issue was not yet subject to review, but each

relied on a different doctrine—the first judge concluded that the

action was final and ripe but that the petitioner ha d not exhausted

administrative remedies, the second judg e concluded that the action

was ripe and that the petitioner had exhausted administrative

remedies but that the acti on was not yet final, while the third judge

concluded that the action was final and that the petitioner had

exhausted administrative remedies but that the action was not yet

ripe for review.

In its 2023 opinion in Axon Enterprise v. Federal Trade

Commission,

2

the Supreme Court held that none of the limits on the

timing of the availability of judicial review apply to structural

challenges to the constitutionality of an agency. Thus, a district judge

can decide whether the structure of an agency is constitutional at the

behest of any individual or firm that is required to appear in any

proceeding at the agency bef ore the agency takes any action against

the individual or firm. The Court reasoned that an individual or firm

is immediately injured by having to participate in a proceeding before

1

814 F.2d 731 (D.C. Cir. 1987).

2

598 U.S. 175 (2023).

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TIMING OF REVIEW

Ch. 8

an agency with an unconstitutional structure. The decision in Axon

has produced an acceleration of the process through which the many

challenges to the constitutional validity of the adm inistrative state

reach courts, including the Supreme Court.

Section E discusses a 2024 Supreme Court decision that has the

surprising effect of eliminating the statute of limitations applicable

to most agency rules. As a result, anyone can now challenge the

validity of most rules in court even if the rule is twenty or fifty years

old.

The doctrine discussed in section F, primary jurisdiction, is in a

sense the flip side of the three timing doctrines. It is the ba sis fo r

judicial decisions to refer questions or entire disputes to agencies for

initial resolution when a party has raised an issue in a judicial

proceeding. Functionally, however, primary jurisdiction also overlaps

with the three timing doctrines. Since it too determines the allocation

of initial decision-making responsibility between agencies and courts,

it should come as no surprise that courts focus on the same decisional

factors in making decisions through application of the primary

jurisdiction doctrine as in making decisions through application of

the three timing doctrines.

B. Final Agency Action

Except in the unusual case in which some other statute makes a

non-final agency action reviewable, APA § 704 makes only final

agency actions reviewable. The Supreme Court announced a two-part

test for determining whether an action is final in its 1997 opin ion in

Bennett v. Spear.

3

“First, the action must mark the ‘consumation’ of

the agency’s decisionmaking process. . . . [S]econd, the action must be

one by which ‘rights or obligations have been determined’ or f rom

which ‘legal consequences will flow.’ ” In Bennett, the Court held that

a biological opinion issued by the Fish & Wildlife Service (FWS)

under the Endangered Species Act was a final agency action. The

first part of the test was easy to apply, as often is the case. The agency

had concluded that a pro ject under consideration for approval by

another govern ment agency (referred to by the Court as the action

agency) would, without modification, j eopardize the continued

existence of an endangered species. The second part of the test was

more difficult to apply. FWS had no direct power to approve or

disapprove the project at issue. Yet, the Court held that the FWS

biological opinion satisfied the second part of the test because it

“alter[ed] the legal regime to which the agency action [approval or

disapproval of the proposed project] is subject.” The Court noted that

“action agencies very rarely engage in conduct t hat [FWS] has

3

520 U.S. 154 (1997).