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Finality. What are the requirements for a final order under sec. 704 of the APA? 1) the action must mark the consummation of the agency's decisionmaking process - it must not be tentative or interlocutory
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Finality • What are the requirements for a final order under sec. 704 of the APA? • 1) the action must mark the consummation of the agency's decisionmaking process - it must not be tentative or interlocutory • 2) it must be one by which legal rights and obligations have been determined or from which legal consequences will flow
FTC v. Standard Oil of California (1980) – (not in the book) • FTC issued a complaint saying it had reason to believe that the oil companies were engaging in unlawful competition • Why does Socal want to contest this intermediate finding? • United States Supreme Court said it had to be a final action or otherwise reviewable under 704
Western Illinois Home Health Care v. Herman, 150 F3rd 659 (1998) • Asst. District Director sent a letter to a regulated party – probably an administrative order • The party moved for review • Was it final? • Not tentative or interlocutory • Established legal duties with penalties • Thus was final for review purposes
What is the Catch 22 in Franklin v. MA? • What if the agency action must be approved by the president? • The census is only a recommendation by the agency to the president, so it is not final • The order is not final until approved • The president's decision cannot reviewed under the APA because he is not an agency
Is administrative delay enough to justify finality? • Delay alone is not enough to justify finality • Congress must set some deadlines before the court can force an agency to speed up • Agencies get to decide how to allocate their resources
Exhaustion of Administrative Remedies • Somewhat like the final order doctrine • The litigant still has agency appeals left and the agency might change its mind
Questions of Law • If it is only a question of law with no facts in dispute, then you do not need to exhaust the agency process • Constitutional Claims • Claims of acting beyond the statutory authority • Claims of improper rulemaking • What is the risk? • If the court disagrees, you have waived your right to the agency process
How does the court distinguish finality from exhaustion? • You have nothing left to do, but the agency is not finished • Court says 704 specifically allows intermediate agency actions to be reviewed when the final action is reviewed.
McCarthy v. Madigan (Exhaustion/Alternative Remedies) • NOTE - This case has been overruled by statute for prisoners. It is still good law in other situations. • Federal prisoner brought Bivens action seeking only money damages for denial of medical care. • Why Bivens? • Was that remedy available from the prison administrative grievance process?
The Exhaustion Issue • What can the prisoner gain by exhausting his administrative remedies? • How does the prison appeals process burden the inmate? • Lots of short deadlines increase the chance he will screw-up and lose the right to the claim
Preserves agency authority • Most important when the issue is one of agency discretion • Lets the agency have a chance to rule and perhaps correct the problem • Prevents end runs on the agency which can weaken the agency's effectiveness
Judicial efficiency • The agency might moot the controversy • Builds the record for review
What is the most important way to know if exhaustion applies in the federal system? • Whether Congress requires it in the enabling act • Did Congress require exhaustion for prisoner Biven's claims? • No
Does the prisoner have to exhaust his remedies? • Why does seeking access to medical care increase the chance that the prisoner can skip the appeals process? • Does not directly implicate prison discipline • Will the record of the appeals process assist the court in making its decision? • No, it will not develop a detailed factual record.
What is the futility doctrine and how do you satisfy it? • You argue that there is no chance the agency will rule for you • Need specific factual allegations, not just a hunch or guess • What does this look like from other areas of adlaw? • The Closed Mind Problem in adjudications
4) the adequacy of the agency remedy in relation to the plaintiff's claim
6) the apparent clarity or doubt as to the resolution of the merits of the claim
8) the plaintiff's excuse for not exhausting the remedy, other than futility
How do primary jurisdiction and exhaustion differ? • Exhaustion is when the agency has primary jurisdiction and the court is recognizing it • Primary jurisdiction is when the court and the agency both could hear the case and the court defers to the agency
What are the standards courts use to determine primary jurisdiction? • 1) need for uniform results • 2) need for agency expertise • 3) that the agency may resolve the issue in a way that will obviate later judicial review. • May courts defer to agency findings in criminal cases? • There is no bar to the court deferring to an agency proceeding in criminal cases.
Nader v. Allegheny Airlines, Inc., 426 U.S. 290 (1976) • Do not bump Ralph! • There is another case where they bumped a federal judge • Why was his fraudulent misrepresentation claim outside of the agency's review? • Common law remedies were preserved • The agency did not require over-booking • He did not attack any agency regs
