The Availability of Judicial Review

Statutory Preclusion: Congress controls the Jurisdiction of the Federal Courts and is free to write into Statutes particular exceptions to the general availability of judicial review. Courts say there is a presumption of Judicial Review, but congress can make exceptions to review. Preclusion of Judicial review will apply presumption heavy handed, the courts are willing to use this assertiveness in enforcing this presumption.

APA § 702: Gives you the right of review.
APA § 701: Judicial Review is not available "to the extent that (1) Statute preclude judicial review; or (2) Agency action is committed to agency discretion by law.
(1) Layman's: Concerned with formal expressions of legislative intent
(2) Layman's: Deals primarily with functional reasons why review would be difficult or harmful.

Early Cases Strong Presumption of Judicial Review- Abbott Lab v. Gardner: The supreme court formally acknowledge the resumption of Judicial Review saying that it will happen unless there is a persuasive reason to believe that this was the intention of Congress.

[Impliedly precluded Review] Used Legislative History in Favor of Preclusion- United States v. Erika (1982): The Court construed a provision of the Medicare Act as impliedly forbidding federal courts from reviewing the amounts paid to health care providers under part B (optional coverage). The court pointed to indications in the legislative history the Congress wanted to keep these "quite minor matters" out of federal court.

No Preclusion- Bowen v. Michigan Academy of Family Physicians (1986) The HHS adopted a regulation that provides lower payments to allopathic family physicians than to other physicians. Section 1395ff of the Act precludes judicial review of adverse eligibility determinations under parts A and Bm but it authorizes judicial review of amount determinations only under part A. HHS argues that this omission means that courts cannot review regulations relating to the determination of amounts payable to part B.

Strong Presumption: Strong presumption that Congress intends judicial review of administrative action. But Congress can make exceptions by specific language or congressional intent.
Held: There is judicial review, the agency did not successfully rebut the presumption of review. Section 1395ff is an explicit authorization of judicial review, not a bar for review.

Compared to Erika: the Court construed the same provision in Medicare act more permissively and allowed suit to proceed. The Court did not think that that Act should be construed to bar statutory and constitutional challenges to the method by which reimbursement amounts would be determined.

Courts frequently construe apparently preclusive statutory language to permit some form of review. Like in this case, a statute providing that certain agency action is final is often read to permit review of the action on some grounds or by some means. (Just think when in doubt REVIEW!)

Webster v. Doe (1988): Held that a statute precluded judicial review of the merits of the CIA's decision to discharge an employee who was admittedly homosexual but it did not foreclose judicial review of the constitutional claims. "Where congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.

J. Scalia Dissent: Congress foreclosed all of the claims even the constitutional one because Congress created the lower federal courts and thus they control the jurisdiction. (Scholars don't like this because they argue that the Constitution prohibits Congress from precluding judicial review of constitutional issues.

1) 701(a)(1): Applies when Congress has expressed an intent to preclude judicial review
2) 701(a)(2): Even if Congress has not precluded review, review is not be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.

There can be no Judicial Review of Agency decisions when there is no law to apply. (This is vague → Heckler expands)

A TX Prisoner on death row petitioned the FDA to take enforcement action to prevent the violation becuase the FDA had not approved the drug as "safe and effective." The FDA refused to do so, the Commissioner disagreed with Chaney's construction of the law and also relied on his discretion not to enforce the Act in cases where there is no serious danger to the public health. Lower court held that FDA's refusal to take enforcement action was reviewable and an abuse of discretion.

Held: The 702(a)(2) APA Provisions allows a narrow exception to judicial review. There can be no review if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.

Decision not to enforce are presumptively not reviewable: No enforcement is presumptively not reviewable: Generally the decision not to prosecute or enforce is not for judicial review (a lot of factors, resources, policy calles. etc), no coercive power over an individual's liberty or property rights when there is no action. (Similar to Federal Prosecutors don't enforce).
Where the Presumption may be Rebutted: the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforce power.

FN 4: Says that the refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction, or if the agency has consciously adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibility these actions were not committed to agency discretion.

1) Does the Statute impose standards on the agency's enforcement decision?
2) Has the Agency adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilites?
3) Did the Agency's non-enforcement decision contain an erroneous legal interpretation?
See Crowley: where the court refused to carve out for review a legal issue buried in an individualized enforcement decision. Because a SCOTUS decision holding that an agency's refusal to reconsider its prior decision was committed to agency discretion and declining to review the legality of the agency's reasons for refusing to reconsider. [But if the agency had articulated its legal interpretation in a document that showed the agency intended to apply it is a broad class of situations, it may go the other way]
Courts Go Other Way than Crowley: And a readier to review claims of legal claims of legal error affecting a non-enforcement error, even if the Crowley Test is not met.
4) Did the Statute provide for a private right of action against the person creating the health hazard?

Cf. A court can require the agency to respect its legislative mandate- Dunlap v. Bachowski (1975): In this case the statute said the Secretary of Labor "shall" sue to set aside a union election "if he finds probable cause to believe that a violation has occurred. Here the statute withdrew power from the agency and provided guidelines for exercise of its enforcement power.

Cf. To enabling statute of FDA in Heckler: FDCA's general provision provides the the Commissioner is authorized to conduct examinations and investigations.
Remember: It's not about regulations it's about statutes here! So it doesn't matter what the agency says, we are looking at congress's deference.

Even though Mass v. EPA says that refusal to promulgate rules are susceptible to judicial review because they are more apt to involve legal as opposed to factual analysis, "If that statute that delegates authority to the agency includes no standard that constrains the agency's decision whether or not to adopt a regulation, the courts cannot review the agency's rejection of a rulemaking petition. See Convervancy of Southwest FL v. US Fish and Wildlife (11th Cir) → The distinction here must be Mass v. EPA gives a standard in the statute.

1) Agency Decision not to continue to fund a health program: Out of its lump sum appropriation. (Lincolin v. Vigil)
2) Agency Decision not to reconsider its own decisions
3) Agency's Decision to terminate an employee who was an admitted homsexual. (Webster v. Doe)
4) The President's decision to accept or reject a list of military base closings proposed to him by the Defense Base Closure Commision.

The court held that the decision to fire the homosexual employee was within the agency's discretion because the statute used the word "deem", but it was also a Policy Question of whether the Court should be probing the head of the CIA given that he is responsible for giving views about national security and other stuff.

Under the APA's definition of "Agency action," the failure to act is included APA §551(13). But when courts are asked to review inaction they seemed to be more deferential than when affirmative acts are challenged.

Norton v. Southern Utah Wilderness Alliance: The BLM is in charge of land management. There goal to protect wilderness has come into increasing conflict with ORVS. SUWA filed action in District Court. It sought relief for BLM's failure to act to protect public lands in Utah from damage caused by ORVs. Two Main claims: 1) That BLM had violated its non-impairment obligation under 1782 by allowing degradation in certain WSAs; 2) that BLM had failed to implement provisions in its land use plans relating to ORV use. Suing under APA 706(1).

They tried to bring a claim under under APA 706(1): "The Reviewing Court shall compel agency action unlawfully withheld or unreasonably delayed"

Court lays out 2 very important limitations on Scope of 706(1):
1) Discrete and Particularized Action: 706(1) may only be used to require an agency to take a discrete or particularized action.
Applied to the Case: In this case, the court could not enter a general order commanding BLM to fufill its statutory obligation to manage the lands so as to preserve their potential to designated wilderness.
2) Action must be Legally Required/ Unlawfully witheld action: A Court may not used 706(1) to compel an action unless it is legally required.
Applied to the Case: BLM's land use plan provided that the agency "will conduct" an intensive monitoring program in specific mountain areas. But the court could not enforce because this was plan and only subject to change based on the availability of resources etc.

Leave Jurisdiction to the Politically Accountable Branches: The Judicial Branch shouldn't be the one to compel actions when they are not the one most accountable to the people.

Problems with Forcing Delayed Action: An order to expedite one matter may delay other matters or force the agency to decide a matter before it is prepared to do so. The agency has broad discretion with respect to the deployment of its limited resources and courts should hesitate before imposing its own timing priorities. (They balance the reluctance against this with their obligation to enforce statutory commands.)

Standing: In order to have standing we need both 1) Art III standing and 2) Zone of Interest

Lujan v. Defenders of Wildlife: The ESA requires federal agencies to consult with the Sec. of the Interior to ensure that actions funded by the agency don't harm endangered species. The Sec made a rule that provides that funding agencies need not consult the Sec. as to actions outside the US. AID did not required to consult with the Sec about projects that might threaten the habitat of the asian elephant and leopard in Sri Lanka.

Holding: The Defenders did not have standing to challenge because they have no injury and there is no redressability just having them meet with the secretary doesn't mean the endangered animals will stop dying.

This type of Standing comes from Article III Cases and Controversies and it means that a person seeking judicial assistance must have a sufficient stake in the dispute.

Requirements for Standing: *Scalia Claims to get this from the constitution but it says nothing about injury. (CA state courts don't require injury)
1) Injury in Fact: It must be an invasion of a protected interest which is (a) Concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.
2) Causation: between the injury and the conduct complained of that is fairly traceable to the challenged action of the defendant and not the result of independent action of a third party.
3) Redressability: It likely that the injury will be redressed by a favorable decision.

The Citizen suit provision was irrelevant in this case, because implementation of the laws is primarily the province of the executive branch, and Congress could not empower the courts to take over that function by intervening in the absence of case or controversy under Art. III of the Constitution.

Concurrence: Maybe the result in that case might have been different if Congress had conferred on the plaintiffs a new legal interest, not just a right to sue.

Mass v. EPA: Sues the EPA because it failed to adopt rules limiting greenhouse gas emission. Mass has standing because injury is the coastline erroding and as far as causation it is a little bit shaky because it's hard to prove it's commoning from emissions
Quasi-Sovereign: A State litigating on behalf of its citizens increased the ability to sue.
Causation Analysis Incremental Step: The fact that not having the gas will make it a little better is a solid argument for the courts.
Slow Reduce Erosion: Even though the emissions won't totally fix the problem they will slow erosion. That is good enough for the courts.

Mere Interest is not enough to bring suit- Sierra Club v. Morton: The Sierra Club brought suit to block the development of a ski resort in the Wilderness area. The Court held that they lacked standing because they failed to show that any Club member had suffered an injury in fact, a historical commitment to conservation is not enough. (Sierra Club v. Morton)

An Association May Sue on Behalf of Its Members- Hunt v. Washington State Apple Advertising: An Association has standing to sue on behalf of its members when:
1) It's members would otherwise have standing to sue in their own right
2) The Interests it seeks to protect are germane to the organization's purpose and
(Interest? NAACP about wildlife? )
3) Neither the claim asserted nor the relief requested requires the participant of the individual members of the lawsuit,

The Bar that the Injury must be certain is pretty high [certainly impending language]- Clapper v. Amnesty Int'l: This involved a constitutional attack on Government surveillance new law that foreign monitoring need not be agents of a foreign power but could be anyone who might produce foreign intelligence information. The Court was no longer required to approve each particular target, just a generalized surveillance program. The plaintiffs argued that there was objectively reasonable likelihood that their email and phone communications with their foreign contacts would be intercepted.
Held: The plaintiff need not show that the harms are literally certain to occur but they must establish more than a reasonable likelihood that hey will occur.

There must be Actual Redressability- National Wrestling Coaches Ass'n v. Dept of Education: The coaches complained that colleges were eliminating men's wrestling programs because of DOE "policy interpretation." The policy set forth enforcement guidelines of the Education Amendments of 1972. The Coaches argued that if they prevailed, they would have "better odds" of retaining their wrestling programs.
Held: "Better odds" is not enough to have redressability.

Monsanto v. Geertson Seed Farms: Court found that organic farmers had standing to challenge an Agriculture Dept order that permitted the sale of genetically modified alfalfa seeds. The farmers has demonstrated a "substantial risk" that if these seeds were planted, their own crops would also be contaminated through cross pollination, then they would have to spend money to test their crops.
Held: Approved of Substantial risk here. In Clapper they said "to the extent that the substantial risk standard is relevant and is distinct from the clearly impending requirement, the Clapper plaintiffs fall short of even that standard.

The right to sue alone is not enough, but it has to be the right to something else other than the right to sue-
FEC v. Akins: A group of voters sued the FEC for failing to require AIPAC, a pro-Israel lobbying organization to file reports about their membership. The Court found that the Act had conferred on plaintiffs ( and everyone else) a right to obtain information from political committee (AIPAC was one).
Deprivation of a Right: was the kind of injury that would support standing. (the right to obtain information).
Informational Injury: That fact that the harm was generalized (other voters could assert) did not matter, because this informational injury was concrete.
Qui Tam Provision: of the Enabling Act, has a provision that enables private individual to bring suit on behalf of the United States against a person who has defrauded the government. (Cf. to Defenders)

The Court held that environmentalist lacked standing to sue the Forest Service for depriving them of what the environmentalist alleged were statutorily conferred right to file comments on the agency's plan.
Can't have a procedural right alone: You must have some concrete injury in addition to the right.

Courts have held that an individual may sue an agency for information under the Freedom of Information Act, or for disclosure of meetings of advisory committees as required by the Federal Advisory Committee Act.

Defenders: A private party who contends that an agency committed a procedural error in reaching a decision does not have to show that rectification of the error would be likely to cause the agency to revise its action. But she does have to show that such revised action would be likely to redress some harm to her concrete interests.

Zone of Interest: Plaintiffs rarely fail to get the zone of interest prong of the test

Applicable APA 702: "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of relevant statute is entitled to judicial review thereof."

Association of Data Processing Serv. Org v. Camp: Petitioners sold data processing services. They challenge a ruling by the Comptroller of the Currency that national banks could provide data processing services. Ps say violated the National Bank Act. LC dismissed for lack of standing.
2 Questions for Inquiry:
1) Constitutional Standing: Whether the litigation involved a case or controversy under Art. III
Applied to the Case: The Company would experience economic harm.
2) Zone of Interest: Whether the plaintiff's interest was arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question?
Key Point Levin Emphasized: interest that congress considered under the act!!!
Applied to the Case: Federal banking legislation suggested at least arguably that Congress desired to protect companies from having to compete with banks for nonbanking business.

Clarke v. Securities Industry Ass'n: In cases where the plaintiff is not itself the subject of the contested action, the test denies a right or review if the plaintiff's interests are so marginally related to or inconsistent with the purpose implicit in the state that it cannot reasonably be assumed that Congress intended to permit that suit. (Says it is not a demanded test)
See Eg Scalia Example: Courtroom typewriters outside of scope. (Court reporters).

there are two ways to look at the congressional purpose of the statute you can either look directly to the provision or look to the statute itself. (If Congress wants to override the zone of interest it can do so)

See for Example: Air Courier Conference of America v. American Postal Workers Union: Postal Workers sought to prevent the USPS from allow private couriers to deliver US mail to foreign countries. This actio would violate the PES which gives USPS a monopoly over carrying the mail. The PES was inacted in 1792 and the purpose of PES was to protect the postal service from competition, not to protect the jobs of postal workers. The Right of postal workers to unionize was recognized in 1970 statute (The postal Reorg Act) had nothing to do with the Interest Zone.

Finality: Doctrine the as a general rule courts will only review "final" agency action. Ordinarily a litigant must complete the entire administrative process before a court will review decisions that the agency took along the way.
APA § 704: Final agency action is subject to judicial review
Rule: Two Conditions must be met for finality (Bennett v. Spear)
1) Must mark the consummation of the agency's decisionmaking process and not be of a merely tentative or interlocutory character
2) the action must be one by which legal consequences will flow.

FTC v. Standard Oli Co of California (Socal): The FTC issued a complaint against major oil companies alleging that it had reason to believe they were engaging in unfair methods of competition. FTC made this determination before issuing a complaint charging a party with unfair method of comp. Socal moved to dismiss the complaint on the ground that FTC did not have "Reason to believe" it violated the act. Socal filed a complaint in the district court seeking review of whether the FTC had reason to believe it was violating the act. Socal said political pressures made the FTC do it.
Held: Suit was premature because the FTC had not taken final action. The agency's averment of reason to believe" was not a definitive agency position the company felt no burden on the companies other than the burden of litigating.
Bottomline: Litigation costs are not enough of a burden to get past finality.
Problem: The Oil Companies' position is the the agency does not have reason to believe. And the issue is the on appeal once the decision is final the company can't say even though you found dirt on us you didn't have reason to believe.

Sackett v. EPA: Held that an administrative compliance order was final agency action under APA. There was no administrative hearing before the ACO. The issue was whether the wetlands on Sackett's property were navigable waters, if so he needed a permit to fill them. If Sackett does not comply with the order, he can be severely fined.
Why it was a final order: The Order determined legal rights and obligations and legal consequences flow from the issues of the order (including liability for monetary penalities if Sackett did not remove the fill.) Therefore it was a final order, plus the statute did not impliedly preclude intermediate review.

Make a Better Case with Interim Injuries- DDT Cases: A non-final agency action may be reviewed if significant legal or practical consequences flow from that action. By Statute the EPA had to prevent the sale of
DDT because it was unsafe. In the case of imminent hazard to health and safety, EPA can suspend a pesticide's registration and thereby remove it from the market. Public interest groups peititoned to EPA to suspend the registration of DDT, but the agency took no action on the petition.
Held: the EPA's failure to take action on the petition to suspend registration was immediately reviewable. It was an imminent health hazard, the public would suffer irreparable injury during the lengthy cancellation process.
Bottomline: You could make a better case was interim injuries. (The order is effecting the day to day operations, but is this different than Socal.

Franklin v. Mass: The Finality Doctrine also generally bars review of actions take by a subordinate official whose decision will not directly affect the public. THe Court held to prevent APA review of the methodolgy that Sec. of Commerce used in calculating the results of the 1990 census. Sec decision was non-final because she merely sent a report to the President, who made the ultimate decsions

Portela-Gonzalez v. Secretary of the Navy: A civilian worker at the navy resale store had clothing on layaway. The clothes went back on sale and she decided to take them off layaway to get a bigger discount. She says she did not violate policy. The Officer in Charge suspended her without pay pending anticipated disciplinary action. She contests. The OIC overrode her grievance and terminated her employment and the navy advised her of her right to appeal. All the appeals affirmed the original. She had one more round to go through but she decided to go directly to trial court. District Court held impermissibly failed to exhaust her adminstrative remedies but they said thr Agency's Action were neither a/c. She appeals to the court. 1 cir also said she did not exhaus

Exhaustion: If review is sought while an agency proceeding is still under way, a court will usually dismiss the action because the plaintiff's failure to exhaust administrative remedies.

A- The Exhaustion Doctrine
Traditional Rule: "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted."
Courts can relax in some circumstances:
1) Unreasonable or indefinite delay may cause the plaintiff to suffer irreparable harm if unable to secure immediate judicial considerations of his claim
2) Substantial Doubt exists about whether the agency is empowered to grant meaningful redress.
3) Objectively verifiable indicia of administrative taint.

Under Federal Law a party must exhaust remedies even though the dispute concerns a question of law or of the agency's jurisdiction. An employer in a NLRB hearing said it was not operating in interstate commerce and the NLRB had no jurisdiction over it. Court said still must exahust the agency rememdies.
.

State Differ: The allow courts to rule on questions of law or jurisdiction before a petitioner has exhausted administrative rememdies

In the case Congress had exempted Navy Exchange Personnel from the strictures of the APA.

APA 704 (Seems to Relax the Finality Repquirement and exhaustion.

"Except as otherwise expressly required by Statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declatory order, for any form of reconsideration, or unless the agency otherwise requires by rule and provides that action meanwhile is inoperative, for an appeal to superior agency authority."

Holds that APA relaxes both the finality and exhaustion of remedies requirement in the APA.

In the case HUD provided that a party could appeal an ALJ decision in a debarment case to the Sec. and decision would be stayed during the pendency of such a appeal. Key thing is the rule did not require parties to take the appeal, so therefore Darby could seek judicial review of an adverse aLJ decision without bothering to appeal to the Sec.

Since the case HUD changed it's procedural rules to require this. Now have to exhaust it.

General Rule: Is that an agency lacks authority to determine the constitutionality of statutes. A party who launches an on-the-face challenge to constitutionality of a statute or regulation nromally should not be required to exhaust remedies, since there is no effective administrative remedy.
Applies to Substantive Attacks: Such as that the statute or regulation violates the First Amendment.
Applies to Procedural Attacks: Such as that the statute or regulation violates procedural due process.

Exhaustion is often Required in Several Situations that involve constitutional claims:
1) If Exhaustion is jurisdictional rather than discretionary, even on-the face constituitonal claims be first presented to the agency. (Avocados) [Exception: if the constitutional issues is wholly collaterl]
2) if the case presents both Con issues and non-con issues
3) If it is applied to the plaintiff as opposed to applied to on-the-face attack of the statute.
4) If the agency is empowered by state law to rule on constitutional issues.

Actions under 42 U.S.C 103 (2000)- Civil Rights Plantiffs do not have to exhaust their state remedies before brings a civil rights claim
Patsy v. Florida Board of Regents: Patsy was employed by public university in Florida and alledge that she had been discriminated against because of her sex and sex can go straight to the courts

United States v. L.A Trucker Lines: A party must have raised the very issue before every level of the agency that it intends to raise on judicial review. Just simple fairness for the agency.

But here an applicant was allowed to bring up an issue that he had not raised before the agency. The court considered that he was not represented by a council, neither was the agency, and the agency had not warned the claimant that they had to exhaust all issues before the Appeals Council.

Bottomline: Make all your points at the agency level.

Going to Court as soon as the rule is published/ or when they enforce it

Facts: The FDA Enacted a rule that required the generic name to appear prominently and in type at least half as large as that used thereon for the proprietary name. The Purpose was bring doctor's attention and patients to the fact that many drugs sold under trade names are identical to drugs sold under generic. The FDA then adopted a rule requiring that the generic name appear on labels and other promotional materials every time the trade name is used.

Manufacturer's (90%) jointly brought the case seeking declaratory and injunctive relief against the rule saying that the rule was inconsistent with the statute. The COA held that 1) pre-enforcement review of FDA rules were precluded by statute, and 2) the regulation was not ripe for review. The SCOTUS held that Congress had not precluded pre-enforcement review of FDA regulations.

Held was ripe for review.

When Figuring out if it is ripe consider:
1) the fitness of the issues for judicial decision (legal issues) and
2) the hardship to the parties of withholding court consideration. (Hardship/Compliance Risk and Penalities)

1) the fitness of the issues for judicial decision (legal issues) and
Applied: The administrative proceedings are done, the expertise of the commissioner is relevant but this is mainly an issue of what the congressional intent is
2) the hardship to the parties of withholding court consideration. (Hardship/Compliance Risk and Penalities)
Applied: The manfacturers are put in a tough place, either they comply and make changes are risk prosecution (With criminal and civil penalties)

Justice Fortas: Neither case is ripe for review, gives judges a roving commission to held the regulatory process and to do so on the basis of abstractions.
Public Interest in avoiding the delay in implementing Congrees' program far outweighs the private interest.

Cf. Toilet Goods v. Gardner: Held it was unripe for review. The rule required companies using color additives in cosmetics to give FDA inspectors "free acess" to their proprietary formulas." If the manufacturer does not comply, the FDA could temporarily halt its certification services for that company.

Does not injure companies because they do not have to alter their conduct. At most that would happen is a suspension and that is fine.

Now that courts have extensive records (not the case in Toliet) Preenforcement challenged are common. Todays rules also have heavy compliance cost

Most Cases are going to be ripe. Few have been held as unripe.

Unripe: Here dismissed challenge to new NTSB rules of practice because they might never be applied to petitioner, and if they were applied, could would then be better able to see how they would play out in practice

Ripes and Rules that Don't have the Force of Law: These cases mainly deal with guidance documents. GDs are often held unripe for immediate review for two reasons 1) Documents do not cause immediate hardship, since by definition they are not legally binding. 2) Issues raised by the challenge are not fir for immediate review because the validity of the agency's position will be clarified by information about how it is applied in practice.

Companies will argue: The agencies plan to enforce these policies// Agencies we actually don't know how we will enforce them.

Reviews with the Force of Law tend to be reviewed immediately.

Center for Auto Safety v. National Highway Traffic Safecty: NHTSA issued policy guidelines concerning the regional recall of cars. The Guideline allow cars to be recalled based on climate of a region. Held that agency action were not final agency action, even though they had a practical effect (car owners outside the affected regions wouldn't get the defects fixed for free)

Can't review things with no legal or practical effect