Timing & Finality: An Overview

Timing Requirements for Judicial Review of Agency Actions

Petitioners need to overcome three timing requirements to obtain judicial review of agency actions: 

1) Finality: Agency actions must be final according to APA Section 704, unless Congress has authorized review at an earlier stage.

2) Exhaustion: Courts have also interpreted APA Section 704 as requiring petitioners to show that they have exhausted all available administrative remedies before they ask a court to review an agency’s decision/action. 

3) Ripeness: Parties can only obtain judicial review when agency actions are ripe for review, according to common law.

Because we do not have time to address all three timing requirements, we will focus on Finality, which is exceptional to administrative law per APA Section 704.

Finality: An Overview

APA Section 704 says that courts can review “agency action made reviewable by statute and final agency action for which there is no adequate remedy [...]” Unless a statute specifically provides for judicial review of an agency action, APA Section 704’s procedural requirement limits review to “final agency actions.”

To assess whether a rule is final, courts focus on whether the agency action has immediate and direct effects. Finality is clear where agencies create a final rule or order (aka the decisions creating final, binding rules in rulemaking and adjudication). Finality is less clear where agencies are issuing guidance or doing other activities where there may not be binding legal consequences, and it is not clear whether the agency has concluded its deliberations. 

Over the years, courts have devised several different, but similar, tests to determine whether an agency’s action is “final” and appropriate for judicial review. In this class, we will focus on the test adopted by the Supreme Court in Bennett v. Spear, which is a two-part test that has been used in recent cases to assess whether an agency’s action is final. (You may read Abbott Labs v. Gardner (1967) in your Constitutional Structures class. In that case, the Supreme Courrt applies a four-element rule to determine whether the agency’s action was final. More recent cases, including Sackett v. EPA (2012) refer to the two-element Bennett test instead.)