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

What are the twin purposes of the exhaustion doctrine?

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

Review of Exhaustion

What are the factors to balance in exhaustion cases?

1) the nature and severity of the harm from delay

2) the need for agency expertise in solving the problem

3) the nature of the issues involved

4) the adequacy of the agency remedy in relation to the plaintiff's claim

5) is the claim serious or just a delaying tactic?

6) the apparent clarity or doubt as to the resolution of the merits of the claim

7) the extent to which exhaustion is futile

8) the plaintiff's excuse for not exhausting the remedy, other than futility

Primary Jurisdiction

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