The Yale Law Journal

June 2018

Timing Judicial Review of Agency Interpretations in Chevron’s Shadow

Administrative Law

abstract. The Administrative Procedure Act (APA) permits judicial review of “final agency action.” Agency action is “final” when it is both the “consummation of the agency’s decision making process” and a decision by which “rights or obligations have been determined,” or from which “legal consequences will flow.” Some forms of agency action uncontroversially satisfy both of these conditions for finality. For example, “legislative rules” promulgated by agencies pursuant to congressional delegations of policy-making authority after a period of public notice and comment are certainly “final agency action” that can be challenged before their application. Other forms of agency action pose challenges for the finality doctrine. In particular, agencies sometimes issue nonlegislative “interpretative rules” construing arguably ambiguous statutory provisions. While these interpretative rules are often the consummation of an agency’s decision-making process, do they determine rights or obligations? Do legal consequences flow from their issuance? The Supreme Court has only given this topic cursory treatment, and its precedents on the subject probably confuse more than they clarify. Given this lack of guidance, the courts of appeals have struggled to coalesce around a single approach to understanding the finality of interpretative rules. That said, some courts, including the D.C. Circuit, have demonstrated increasing interest in a bright-line rule deeming interpretative rules as nonfinal prior to enforcement. On this view, interpretative rules never determine rights or obligations, or produce legal consequences until they are applied to a regulated party. At the same time, however, several commentators have also argued that the legalconsequence condition for finality should be eliminated altogether.

This Note argues that the categorical exclusion of interpretative rules from the ambit of “final agency action” is presently unwarranted. It begins by canvassing the present doctrine and finding it wanting. The Note then turns to the contemporaneous history surrounding the APA’s enactment for answers. Examining that history, it demonstrates that there existed a broad consensus shortly before and after the APA’s adoption that legal consequence was the central determinant for whether a given agency action was judicially reviewable. Therefore, the academic critics of the finality doctrine’s legal-consequence condition appear to have missed the mark. Moreover, the history demonstrates that while courts sometimes deferred to an agency’s interpretative rules, those rules lacked the force of law because, at the end of the day, the courts always remained free to substitute their preferred statutory interpretation for the agency’s. At first blush, therefore, it might appear that the categorical exclusion of interpretative rules from “final agency action” has a sound historic pedigree. However, the historical unreviewability of interpretative rules hinged on the premise that the rules could never bind the courts. But the current regime of Chevron deference undermines that premise and should change the calculus for whether interpretative rules produce the legal consequences sufficient for finality. All told, any interpretative rule that is eligible for Chevron deference should also be “final agency action” under the APA. The Note concludes by explaining how a unified deference-finality doctrine might operate in practice.

author. Yale Law School, J.D. 2017. I am particularly grateful to Bill Eskridge for supervising this project and for encouraging me to develop a solution to what seemed like an intractable problem. I am also indebted to Nick Parrillo, who first introduced me to this topic and offered perceptive feedback on an earlier draft. And I would be remiss if I did not thank Jamie Durling, Joe Falvey, and Mark Pinkert for several illuminating conversations during the Note's early stages. Finally, the editors of the Yale Law Journal, especially Patrick Baker and Joaquin Gonzalez, offered immensely helpful editorial suggestions. All remaining errors are my own.