+ 2

The Supreme Court's opinions in the war-on-terrorism cases address grand issues concerning access to the courts for review of executive action, and might reasonably fit into a chapter entitled "Judicial Review" in a book devoted to recent developments in administrative law broadly construed.'
Nonetheless, this chapter leaves that discussion to other chapters, in favor of more workaday but generally applicable developments. Even this limitation leaves far too much information to cover because, as always. the courts have handed down numerous opinions illuminating (or obscuring) preclusion,
2 ripeness,' standing,' exhaustion,' application of the arbitrary-and-capricious
* By Richard Murphy, Associate Professor, William Mitchell College of Law
(Committee Vice-Chair), who thanks Professors William Jordan (University of
Akron) and Ronald Levin (Washington University in St. Louis) for their suggestions regarding recent cases with interesting judicial review dimensions.
1. See, e.g., Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004): Rasul v. Bush, 124 S. Ct.
2686 (2004). Handi is also discussed herein in Adjudication (supra 3-6) and
Constitutional Law and Separation of Powers (supra 24-28), and Rasul is also discussed herein in Adjudication (supra 6-7) and Constitutional Law and Sepa- ration of Powers (supra 30-32).
2. See, e.g., Riverkeeper, Inc. v. Collins, 359 F.3d 156, 166-71 (2d Cir. 2004) (concluding that NRC's denial of a request to initiate an enforcement action did not signify an "abdication" of its statutory duties of a sort that could rebut the presumption against reviewability of Heckler v. Chaney, 470 U.S. 821 (1985)).
3. See, e.g., Laub v. United States Dept. of Interior, 342 F.3d 1080, 1087-91 (9th
Cir. 2003) (concluding that a "procedural" challenge under NEPA to a "programmatic" environmental impact statement that did not include site-specific plans was ripe for review, and distinguishing Ohio Forestry Ass'n v. Sierra Club,
523 U.S. 726 (1998)).
4. See, e.g., Baur v. Veneman, 352 F.3d 625, 633-43 (2d Cir. 2003) (holding that a citizen had standing to challenge the Department of Agriculture's denial of a petition to ban the use of downed livestock in food, and by holding that an allegation of increased risk of contracting fatal neurological disease qualified as injury-in-fact and was sufficiently credible to survive pleading stage).
5. See, e.g., Dept. of Transportation v. Public Citizen, 124 S. Ct. 2204, 2213-14
(2004) (stating that petitioners waived any non-obvious objections to environ-
83

84 Developments in Administrative Law and Regulatory Practice standard of review,
6 and the propriety of remand without vacation.
7
As, alas, both life and this chapter must be short, this summary will (somewhat arbitrarily) focus on just three areas that have seen particular foment over the past year-the meaning of "agency action," the "finality" requirement that agency action have "legal consequences," and, inevitably, the unfolding
Mead/Chevron doctrine.
As readers of last year's judicial review chapter may recall, circuit courts have struggled with when an agency's failure to act can qualify as "agency mental assessment that they failed to make during rulemaking proceedings)
This case is also discussed herein in Environmental and Natural Resources Reg-
ulation (infra 283-84). See also Nuclear Energy Inst. v. EPA, 373 F.3d 1251,
1297-98 (D.C. Cir. 2004) (emphasizing that objections to rule not leveled during rulemaking proceedings are waived, and noting that this rule applies equally to claims of faulty statutory interpretation) This case is also discussed herein in
Environmental and Natural Resources Regulation (infra 000-000). See also
Avocado Plus, Inc. v. Veneman 370 F.3d 1243 (D.C. Cir. 2004) (offering a concise comparison of jurisdictional and, nonjurisdictional exhaustion doctrines)
This case is also discussed herein in Agriculture (infra 171-72).
6. For another reminder that satisfaction of the "reasoned decisionmaking" requirement of the arbitrary-and-capricious standard often lies in the eye of the judicial beholder, contrast Prometheus Radio Project v. FCC, 373 F.3d 372,
404-11, 418-21, 431-35 (3d Cir. 2004) (majority opinion) (rejecting as arbitrary various FCC revisions of regulations governing broadcast media ownership) with id. at 435, 445 (Scirica, C.J., dissenting) (affirming these revisions).
7. See Honeywell Int'l, Inc. v. EPA, 374 F.3d 1363, 1373-74 (D.C. Cir. 2004) (concluding that the court lacked authority under the Clean Air Act to remand a defective rule without vacating it, and distinguishing precedent holding that the
APA authorizes remand without vacation); see also id. at 1374-76 (Randolph,
J., concurring) (opining that, even if authority to remand without vacation exists, it should not be used); cf id. at 1379-81 (Rogers, J., dissenting in part)
(contending that "[u]nder the court's precedent, the proper remedy in this case is remand, not vacatur"). On this topic generally, see Ronald Levin, "Vacation"
at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53
DUKE L. J. 291 (2003).

Chapter 5: Judicial Review 85 action" subject to judicial review and remediation under the APA.8 In Nor-
ton v. Southern Utah Wilderness Alliance,' a unanimous Supreme Court spoke to this issue, holding that an agency failure to act is only reviewable where: (a) the action the agency purportedly should have taken was "discrete"; and (b) that action was "required" by law.
Pursuant to 43 U.S.C. § 1782, the Secretary of the Interior designates
"wilderness study areas" (WSAs), which are then scrutinized to determine whether they merit designation as full-blown wilderness areas by Congress.
In 1991, the Department forwarded a recommendation to Congress that it designate two million WSA acres (out of a total of 3.3 million) in Utah as wilderness. Congress, in its wisdom, has not acted on this recommendation.
Until it does, the Secretary has a statutory duty to manage all 3.3 million
WSA acres "in a manner so as not to impair the suitability of such areas for preservation as wilderness."1
0
In 1999, Southern Utah Wilderness Alliance and like-minded organizations (SUWA) filed an action against the Bureau of Land Management
(BLM), seeking injunctive and declaratory relief to correct BLM's failure to protect public lands in Utah from being ripped up by massive increases in the use of off-road vehicles (ORVs). For the present purpose, SUWA's most important claim was that this failure violated BLM's statutory duty to prevent impairment of WSAs, and that judicial authority existed to correct it pursuant to 5 U.S.C. § 706(1), which authorizes courts "to compel agency action unlawfully withheld or unreasonably delayed."
The Tenth Circuit agreed with SUWA."I While it conceded that judicial authority under this provision of the APA extends only to ordering agencies to carry out mandatory, nondiscretionary duties, the court determined that
BLM's obligation to prevent impairment of WSAs fit this description. The agency's failure to fulfill this duty was therefore amenable to judicial review and remediation.
The Supreme Court reversed in a unanimous opinion that focused on two important conceptual points. The first centered on the meaning of
8. Mark Seidenfeld, et al., Judicial Review, in JEFFREY S. LUBBERS, ED., DEVELOP-
MENTS IN ADMINISTRATIVE LAW AND REGULATORY PRACTICE
2002-03, 96-98
(American Bar Ass'n, 2004).
9. 124 S. Ct. 2373 (2004). This case is also discussed herein in Environmental and
Natural Resources Regulation (infra 286-87).
10. 43 U.S.C. § 1782(c).
11. Southern Utah Wilderness Alliance v. Norton, 301 F.3d 1217 (2002).

86 Developments in Administrative Law and Regulatory Practice
"agency action," which the APA defines to include "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act . . . .""The Court noted that the first five categories in this definition-an agency "rule, order, license, sanction, [or] relief"-all involve "circumscribed, discrete agency actions."" The sixth category only encompasses actions which constitute "the equivalent or denial" of actions listed in the first five. Therefore, this sixth category, too, can only include
"discrete" actions.
4
The Court then moved onto the problematic seventh category-"failure to act." It stated that this phrase "is in our view properly understood as a failure to take an agency action-that is, a failure to take one of the agency actions (including their equivalents) earlier defined in § 551(13)."15 Given that the first six categories are all subject to the "discreteness" limitation, it follows that the category of "failure to act" can only include failures to take
"discrete" actions. The Court supplemented this slippery interpretive move with the canon of ejusden generis, noting that it "would attribute to the last item ('failure to act') the same characteristic of discreteness shared by all the preceding items."'
6
The upshot of this "discreteness" limitation is that it blocks efforts to use the courts' compulsion power under § 706(1) to mount a "broad programmatic attack" on agency administration of the sort the Court rejected in
Lujan i Nat'l Wildlife Federation."
The second key point in the Court's discussion is "that the only agency action that can be compelled under the APA is action legally required."" It explained that, "[i]n this regard, the APA carried forward the traditional practice prior to its passage, when judicial review was achieved through use of the so-called prerogative writs-principally writs of mandamus . . ..
"9 Of
12. 5 U.S.C. § 551(13).
13. Southern Utah Wilderness Alliance, 124 S. Ct. at 2378.
14. Id. at 2379.
15. Id. (italics in original).
16. Id.
17. Id. at 2380-81 (quoting Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 890-91
(1990) (rejecting plaintiffs' effort to characterize a broad grouping of BLM operations as constituting a unitary "land withdrawal review program" that amounted to "final agency action")).
18. 124 S. Ct. at 2379 (italics in original).
19. Id.

Chapter 5: Judicial Review 87 course, mandamus principles can themselves be a source of confusion-particularly with regard to whether courts may ever use this writ to correct abuses of discretion.
2 0
The Court's description of the mandamus power in
SUWA strongly suggests that courts may not do so; it observed that the writ is "normally limited to enforcement of a specific, unequivocal command" or the "ordering of a precise, definite act ... about which [an official] had no discretion whatever."
2
'
The Court then applied these principles to SUWA's claim. If one narrowly characterizes this claim as contending that BLM had a mandatory legal duty to stop ORV use on WSAs, then it fails because the statutory provision at issue does not impose this specific legal requirement. The Court gave its complete analysis of this point in the following brief paragraph:
Section 1782(c) is mandatory as to the object to be achieved [nonimpairment], but it leaves BLM a great deal of discretion in deciding how to achieve it. It assuredly does not mandate, with the clarity necessary to support judicial action under § 706(1), the total exclusion of ORV use.
22
The absence of any discussion of whether sensible, discretionary implementation of the duty to block impairment would necessarily require ORV exclusion lends further support to the view that petitioners cannot generally use § 706(1) to cure abuses of agency discretion.
One potential way out of this trap might be to characterize SUWA's nonimpairment claim in a broader, more abstract manner, i.e., the claim is not that BLM unlawfully failed to exclude ORVs pursuant to its nonimpairment duty; rather the claim is simply that BLM unlawfully failed to prevent impairment of the land. This more general formulation cannot fall prey to the argument that it challenges discretionary action because, under § 1782(c),
20. See STRAUSS, RAKOFF, & FARINA, ADMINISTRATIVE LAW: CASES AND COMMENTS,
1111-12 (Rev. 10th ed., 2003) (discussing tension in the law of mandamus on this point); cf Cheney v. United States District Court for the District of Columbia, 124 S. Ct. 2576, 2587 (2004) (noting that appellate courts may invoke the writ against lower courts "only in exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion") (internal citations and quotation marks omitted; emphasis added).
21. 124 S. Ct. at 2379 (citations omitted).
22. Id. at 2380.

88 Developments in Administrative Law and Regulatory Practice
BLM has a plain, mandatory duty to block impairment of WSAs. On this approach, a court could, without intruding on agency discretion, "simply enter a general order compelling compliance with that mandate, without suggesting any particular manner of compliance."
23
The Court held that the fatal problem with this broader characterization of the claim is that it does not challenge a "discrete" failure to act, and
"[gleneral deficiencies in compliance .
.
.
lack the specificity requisite for agency action." 2 4 It supported this conclusion with a broad, functional argument, purporting that:
[i]f courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved-which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency management.
2 5
And such judicial micromanagement, in the Court's view, cannot be right.
The upshot of SUWA is that it will be very difficult for plaintiffs to use section 706(1) to force an agency to take steps to implement a broad legal mandate. A relatively specific claim that an agency has improperly failed to take some given act to implement a broad mandate will be subject to characterization as an attack on the agency's discretionary decisionmaking. A claim that tries to circumvent this problem by avoiding identification of specific actions an agency should have taken will fail on "discreteness" grounds.
B. Mostly Finality
1. When does an interpretive rule or opinion letter have the "legal consequences" necessary for finality?
These days, Bennett v. Spear 2 6 provides the most commonly quoted
"blackletter" law on the meaning of "finality" for the purpose of determin-
23. Id. at 2381.
24. Id.
25. Id.
26. 520 U.S. 154 (1997).

Chapter 5: Judicial Review 89 ing the availability of judicial review of agency action. In that case, the
Supreme Court remarked:
As a general matter, two conditions must be satisfied for agency action to be "final": First, the action must mark the "consummation" of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature. And second, the action must be one
by which "rights or obligations have been determined," or from which "legal consequences will flow." 27
Unfortunately, application of the second prong sometimes collapses into confusing inquiries into what has the "force of law" and what does not. In the following three cases, three circuit courts wrestle with the problem of when opinion letters and interpretive rules have the "legal" punch necessary for "finality." a. Forging a link between strong deference and finality
In Air Brake Systems, Inc. v. Mineta,
28 the Sixth Circuit suggested that agency interpretative rules will only have the "force of law" necessary for finality where they also enjoy the "force of law" in the sense of being eligible for strong deference under Chevron or Seminole Rock. 2 9
Air Brake Systems, Inc. (Air Brake) manufactures a "non-electronic" antilock brake system for trucks and trailers. An Air Brake customer inquired of NHTSA whether this brake system complied with Federal Motor Vehicle
Standard 121. Unfortunately for Air Brake, NHTSA's Acting Chief Counsel decided that it did not, and posted two opinion letters to this effect on the agency's website. NHTSA did not, however, begin statutory processes for determining whether vehicles that use Air Brake's system are in compliance
27. Id. at 177-78 (citations omitted).
28. 357 F.3d 632 (6th Cir. 2004).
29. Referring to Chevron U.S.A. Inc. v. Natural Res. Def Council, Inc., 467 U.S.
837, 842-43 (1984) (holding that a court must uphold an agency's reasonable interpretation of a statute that it administers unless "the intent of Congress is clear" as to the "precise question at issue" or the agency's interpretation is
'unreasonable"); and Seminole Rock & Sand Co., 325 U.S. 410,414, (1945) (an agency's interpretation of its own regulation is entitled to "controlling weight unless it is plainly erroneous or inconsistent with the regulation").

90 Developments in Adninistrative Law and Regulatory Practice or should be recalled. Air Brake was less than thrilled by the posting of these letters and sued, claiming both that the Chief Counsel's compliance determination was wrong on its merits and that, in any event, the Chief Counsel lacked authority to issue compliance opinions without following the recall process.
Air Brake claimed that NHTSA had taken three distinct actions subject to judicial review: (1) the Chief Counsel had stated that Air Brake's system did not comply with Standard 121; (2) the Chief Counsel had made a legal determination that Standard 121, properly interpreted, included a "warning light" requirement; and (3) NHTSA had improperly granted authority to the
Chief Counsel to issue opinion letters. The first two are of most immediate interest; the Sixth Circuit concluded that neither of them amounted to "final agency action."
The court disposed of the first claimed "action" rather easily, concluding that the Chief Counsel's letter could not represent a consummated agency decision because: (I) it amounted to a tentative conclusion based on hypothetical facts supplied by promotional literature rather than independent investigation; and (2) it had been rendered by an officer who was, for the purpose of making fact-bound compliance determinations, "subordinate."
3 0
The second claimed action-interpreting Standard 121 to include a warning light requirement-presented a tougher nut to crack. As for the first prong of Bennett, by regulation, the Chief Counsel of NHTSA enjoys delegated authority to "[i]ssue authoritative interpretations of the statutes administered by NHTSA and the regulations issued by the agency." Moreover,
NHTSA's website describes the Chief Counsel's legal interpretation letters as "definitive." The Chief Counsel's views therefore "may indeed represent the 'consummation' of the agency's process as to purely legal questions.""'
Even if the Chief Counsel's interpretation of Standard 121 satisfied Ben-
nett's first prong, however, it failed the second. The court held that unlike, for instance, an administrative adjudication or a legislative rule, this interpretation did not "directly bind" Air Brake and therefore did not determine its
"rights or obligations."
2
This left only the "harder question" of whether the letters nonetheless
In this
30. Id. at 639-40.
31. Id. at 641.
32. Id.
33. Id.

Chapter 5: Judicial Review 91 regard, the court opined that "[o]ne reliable indicator that an agency interpretation . .
has the requisite legal consequence .
is whether the agency may claim Chevron deference for it."" The idea here is that because Chevron deference forces a court to accept an agency's reasonable statutory interpretation, an interpretation entitled to such strong deference necessarily has
"legal consequences." By contrast, an agency interpretation that merits only
Skidmore's weaker form of deference lacks such "legal consequences" because it leaves the reviewing court in charge of determining legal meaning.
35
Because Chevron governs deference to statutory interpretations, it was plainly inapplicable to the Chief Counsel's interpretation of Standard 121, a
NHTSA regulation. The story did not end here, however, because an agency's interpretation of its own regulations is generally entitled to Semi-
nole Rock deference, which, like Chevron, requires courts to defer to reasonable agency interpretations.
3 6
The court held that Seminole Rock deference did not apply either, on the rather surprising ground that the Department of
Justice "emphatically denies that the opinion letters issued by NHTSA's
The court accepted this position and concluded that, in the absence of any claim to strong deference for the letters, they lack "legal consequences" and were not
"final agency action under the APA."" b. Repetition does not equal rulemaking
In Independent Equipment Dealers Ass'n v. EPA," the D.C. Circuit rejected a challenge to EPA's interpretation of its "Part 89" regulations, which require manufacturers of nonroad engines to obtain "certificates of conformity" evidencing compliance with EPA emissions standards as a condition of selling such engines or importing them into the United States.
40
As
34. Id.
35. See Skidmore v. Swift & Co., 323 U.S. 134 (1944) (noting that agency interpretations without the force of law may still have "the power to persuade").
36. Air Brake Systems, 357 F.3d at 643-44 (citing Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410 (1945)).
37. 357 F.3d at 644.
38. Id.
39. 372 F.3d 420 (D.C. Cir. 2004). This case is also discussed herein in Rulemaking
(infra 152-53).
40. See id. at 422 (discussing the requirements of 40 C.F.R. pt. 89).

92 Developments in Administrative Law and Regulatory Practice
EPA interprets its regulatory regime, a manufacturer must stick an "emission control information label" on each new engine it wishes certified; it need not, however, fix the certification label on any given engine it does not wish certified. A manufacturer can therefore choose to certify only those engines it wishes to sell within the U.S. Identical engines that it sells without the certification label outside the U.S. cannot be legally imported until they have undergone a costly certification process. By making certification of engines depend on manufacturer intent rather than simply performance characteristics, EPA's regulatory interpretation thus protects original equipment manufacturers by making it more expensive for resellers to import nonroad engines into the U.S.'
EPA made its interpretation clear in a series of statements and letters dating back to at least a February 2000 Enforcement Alert. In late 2002, the
Independent Equipment Dealers Association (IEDA) wrote to EPA to question whether "engines that are 'identical' to an EPA certified version can be designated 'uncertified' by the engine manufacturer under the regulations at
40 C.F.R. Part 89." In a letter dated January 21, 2003 (the "EPA Letter"),
EPA's Director of the Office of Transportation and Air Quality answered this question with an unqualified yes. IEDA then filed a petition for review with the D.C. Circuit.
The court dismissed the petition for lack of jurisdiction because the EPA
Letter did not constitute "final action" within the meaning of the Clean Air
Act's judicial review provision, which the court noted is "synonymous" with the APA's section 704 requirement of "final agency action." 42 Turning to the usual Bennett v. Spear test, it made short work of determining that the interpretation satisfied the first, "consummation" prong because it was several years old, and EPA's counsel represented that the agency did not consider it subject to change. The interpretation was therefore "final" in the sense of being "done."
The court characterized the second prong of Bennett as properly relating not to "finality" but rather to whether there was any "reviewable agency action." 43 The EPA Letter did not fall into this category because it had no
"concrete impact" on TEDA or its members. It neither ordered anyone to do any particular thing nor effected any broader, regulatory change. With regard
41. Id. at 422.
42. Id. at 426.
43. Id. at 427.

Chapter 5: Judicial Review 93 to this latter point on regulatory change, the court broadly seemed to suggest that because interpretive rules "merely express[ ]" an agency's view of what the law already requires, they are generally unreviewable standing by themselves." More narrowly, regardless of the reviewability of interpretive rules as a category, the EPA Letter could not amount to a regulatory change because it "merely restated .
.. for the umpteenth time" a longstanding interpretation.
4
5 A restatement of an old interpretation cannot have legal consequences of the sort necessary for reviewable agency action.
The court buttressed this last point with an arresting bit of statutory interpretation. IEDA had claimed that the EPA Letter fell within the APA's definition of "agency action" because it amounted to a "rule."
6
The APA defines a "rule" as "an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy . . . ."47 The court held that, by merely "restating" a longstanding interpretation, the EPA Letter leaves "the world as it found it, and thus cannot be fairly described as implementing, interpreting, or prescribing law or policy."
48
In short, an agency does not make a rule merely by repeating itself.
c. A reminder of the pragmatic approach
In Oregon v. Ashcroft, 4 9 a divided panel of the Ninth Circuit enjoined enforcement of an interpretive rule (the "Ashcroft Directive") issued by
Attorney General Ashcroft which declares that physician assisted suicide serves no "legitimate medical purpose" as required for legal prescription of
44. Id. ("We have held that we lacked authority to review claims where an agency merely expresses its view of what the law requires of a party, even if that view is adverse to the party.") (citation and quotation marks omitted). But cf
Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022-23 (D.C. Cir. 2000) (concluding that EPA "Guidance" document that purported to "interpret" an EPA regulation amounted to final agency action because it: (1) was not "tentative," and (2) had "legal consequences" because it effectively gave "marching orders" to state permitting authorities).
45. 372 F.3d at 427.
46. Id. at 428.
47. 5 U.S.C. § 551(4) (italics added).
48. 372 F.3d at 428.
49. 368 F.3d 1118 (9th Cir. 2004). This case is also discussed herein in Constitu-
tional Law and Separation ofPowers (supra 55-57) and Health and Human Ser- vices (infra 313-14).

94 Developments in Administrative Law and Regulatory Practice a controlled substance under 21 C.F.R.
§ 1306.04. It also warns that a health care practitioner who prescribes for this purpose may lose the federal registration required to dispense controlled substances."o According to the majority opinion, the effect of this directive is to "criminalize
[ ] conduct specifically authorized by Oregon's Death With Dignity Act."" The majority also concluded in perfunctory fashion that the Ashcroft Directive was final and ripe for purposes of review, and that the health care practitioners challenging it had standing.
5 2
Judge Wallace's dissent on the merits included a thoughtful concurrence on, inter alia, the finality issue in which he explained why the Ashcroft
Directive amounted to a reviewable "final determination," notwithstanding its interpretive status. As a threshold matter, 21 U.S.C.
§ 877 grants the court jurisdiction to hear petitions by "persons aggrieved by a final decision of the
Attorney General" made pursuant to the Controlled Substances Act. which was the source of authority for the Ashcroft Directive.
5 3 Due to the lack of decisions analyzing reviewability requirements under section 877, Judge
Wallace "look[ed] to general principles of administrative law formulated under the APA."" These principles include, of course, the familiar, twopronged Bennett test. To determine whether this test has been satisfied, he explained that "relevant considerations include: (a) whether the action is a definitive statement of an agency's position, (b) whether it has a 'direct and irumnediate effect' on the complaining parties, (c) whether it has the 'status of law,' and (d) whether it 'requires immediate compliance.""' This multifactor gloss with its references to "direct and immediate effect" and the requirement of "immediate compliance" hearkens back to language in earlier
Supreme Court discussions of finality in cases such as Abbott Laboratories v. Gardner. 6 Its focus on the practical has the virtue of tending to forestall the tendency of some applications of Bennett to sink into rather sterile
50. Id. at 1123 (describing substance of the Ashcroft Directive, 66 Fed. Reg. at
56,608).
51. Id. at 1120 (citing Or. Rev. Stat. § 127.800-127,897).
52. Id. at 1120-21.
53. Id. at 1146 (citing 21 U.S.C. § 877) (Wallace, J., dissenting).
54. Id.
55. Id. (citation omitted). For another recent case that identifies these factors as relevant to assessment of finality, see The University of Medicine and Dentistry of
New Jersey, 347 F.3d 57, 69 (3d Cir. 2003).
56. 387 U.S. 136, 151-52 (1967).

Chapter 5: Judicial Review 95 inquiries as to whether a given agency action has that sometimes spooky quality, "the force of law." Be this as it may, this approach left Judge Wallace free to concede that, as an interpretive rule, the Ashcroft Directive lacks the "force of law" but is nonetheless still final because of its "direct and immediate consequences for physicians" from whom it required "immediate compliance."
In California Dept. qf Water Resources v. FERC, the California Department of Water Resources (DWR) petitioned for review of a complex FERC order, and the Ninth Circuit granted this petition in part.
5 8
After suffering this loss, FERC petitioned for a rehearing on the ground that the court had lacked jurisdiction because DWR had "sought judicial review of one issue in a
FERC order, while simultaneously seeking agency reconsideration of separate, unrelated issues in the same order."
59
For support, FERC relied on a
D.C. Circuit opinion, Bellsouth Inc. v. FCC, which held that "once a party petitions [an] agency for reconsideration of an order, or any part thereof, the entire order is rendered nonfinal as to that party."
60
The Ninth Circuit rejected FERC's argument on several grounds: (1) as a threshold matter it was not clear that the D.C. Circuit still followed Bell-
south, and no other circuit apparently does;' (2) tinder binding Ninth Circuit authority, "the fact that one part of an agency order remains pending before the agency does not deprive this court of jurisdiction to review a discrete issue that has been definitively resolved by the agency;" 62 and (3) the Ninth
Circuit's approach makes sense in any event because FERC orders often deal with "myriad" issues, and forcing a petitioner to wait for definitive resolution of all of them could delay judicial review indefinitely.
63
57. 368 E3d at 1147-48 (9th Cir. 2004) (Wallace, J., dissenting).
58. 341 F.3d 906 (9th Cir. 2003).
59. 361 F.3d 517, 520 (9th Cir 2004).
60. Id. (quoting Bellsouth Corp. v. FCC, 17 F3d 1487, 1489-90 (D.C. Cir. 1994)).
61. Id. at 521.
62. Id. at 520 (citing Steamboaters v. FERC, 759 F.2d 1382, 1387-88 (9th Cir.
1985)).
63. 361 F.3d at 521.

96 Developments in Administrative Law and Regulatoty Practice
During the last term, the Supreme Court did not issue any opinions that included major discussions of judicial deference doctrine. Close inspection of the Court's applications of deference doctrine is nonetheless revealing because it suggests that: (1) the seemingly clear distinction it drew several years ago in United States v. Mead Corp.' between Chevron and Skidmore deference may not be all that stable; and (2) the Court may be drifting toward adopting a new understanding of the stare decisis force of judicial precedents on agency interpretive authority. And, of course, as they have for the last several years, the circuit courts continue to issue opinions in which they struggle to determine whether a given agency interpretation falls on the
Chevron or Skidmore side of Mead's deference fence.
But
As devotees of the metaphysics of judicial deference know, in 2001 the
Supreme Court attempted in United States v. Mead Corp.
6 5 to establish a framework for determining when Chevron's strong form of deference applies to administrative interpretations of law. Where Mead's conditions for the applying Chevron are satisfied, courts should defer to an agency's reasonable
(or "permissible") interpretation of a statute it administers. Where they are not, courts should apply weaker Skidmore deference, which, unlike Chevron, has not been understood to require courts to affirm reasonable statutory interpretations that they deem less than optimal. Instead, it merely requires courts to give respectful consideration to agency views, checking whether they have the "power to persuade.""
With this Chevron-Skidmore dichotomy in mind, consider Alaska Dept. of Environmental Conservation v. EPA,
6 7 which turned on whether the EPA has statutory authority under a Clean Air Act program to review a state permitting authority's determination that a planned major air-pollutant emitting
64. 533 U.S. 218 (2001).
65. Id.
66. Skidniore, 323 U.S. at 140.
67. 124 S. Ct. 983 (2004). This case is also discussed herein in Environmental and
Natural Resources Regulation (infra 285-86).

Chapter 5: Judicial Review 97 facility will use the "best available control technology" to control emissions.
6 " The EPA has claimed this power in a "longstanding" interpretation of a mix of CAA provisions.
69
The Court began its deference discussion by noting that the "longstanding duration" of an agency interpretation should normally net it "particular deference."
70
The EPA's interpretation was not, however, entitled to Chevron's "dispositive" form of deference because it had appeared in internal guidance memoranda that lack the force of law.
7 '
Instead, they were only entitled to "respect" a la Skidmore. 7
2 Under the usual understanding of the Chevron-Skidmore dichotomy, this conclusion would suggest that the question properly before the Court was whether it thought that EPA's statutory interpretation was optimal, not whether it was merely reasonable. Nonetheless, the Court upheld EPA on the ground that it had
"rationally construed the Act's text ....
It appears that the Court held that Chevron deference did not apply, and then applied it anyhow. This aspect of the opinion did not go unnoticed by the four-justice dissent, which chided:
Actions . . .
speak louder than words, and the majority ends up giving EPA the very Chevron deference-and more-it says should be denied. The Court's opinion is chock full of Chevron-like language
.... So deficient are its statutory arguments that the majority must hide behind Chevron's vocabulary, despite its explicit holding that
Chevron does not apply. In applying Chevron de facto under these circumstances, however, the majority undermines the well-established distinction our precedents draw between Chevron and less deferential forms of judicial review.
74
68. Id. at 991.
69. Id. at 1001.
70. Id. (quoting Barnhart v. Walton, 535 U.S. 212, 220 (2002)).
71. 124 S. Ct. at 1001 (citing Christensen v. Harris County. 529 U.S. 576, 587
(2000) and United States v. Mead Corp., 533 U.S. 218, 234 (2001)).
72. See id.
73. 124 S. Ct. at 1000 (emphasis added); see also id. at 1001 (petitioner's "arguments do not persuade us to reject as impermissible EPA's longstanding, consistently maintained interpretation"); id. at 1004 (holding that EPA's "rational interpretation .
.
.
is surely pernissible").
74. 124 S. Ct. at 1017 (Kennedy, J., dissenting).

98 Developments in Administrative Law and Regulaton' Practice
That the majority stuck to its deference rhetoric notwithstanding this charge suggests that it takes the Chevron-Skidmnore dichotomy less seriously than one might think after reading Mead. More specifically, the majority's application of deference in this case suggests that Skidmore's supposedly weaker form of deference may be just as "strong" as Chevron's when applied to "longstanding" agency interpretations.
Two concurrences in a pair of ERISA cases from the Supreme Court's last term highlight an interesting post-Mead tension regarding the extent to which judicial interpretations of agency statutes bind agencies. The law in this area is complex, but the short of the matter is that the Supreme Court may be drifting toward the remarkable view that an agency has authority in some circumstances to adopt statutory interpretations that depart from
Supreme Court precedent."
In Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon,
76
Justice Ginsburg, writing for a seven-person majority, determined that the working owner of a business can be both a "participant" and an "employee" for purposes of an ERISA plan under certain circumstances.
7 To reach this conclusion, the Court painfully canvassed various interlocking provisions of
ERISA and also found support from a 1999 Department of Labor Advisory
Opinion-to which the Court purported to extend Skidmore deference.
Trotting out Skidmore deference before Justice Scalia is a bit like waving a red flag at a bull. In his concurrence, he accused the Court of "us[ing] a sledgehammer to kill a gnat-though it may be a sledgehammer prescribed
75. For more detailed discussions of the interaction of stare decisis and agency interpretive freedom, see generally Richard W. Murphy. A "New" Counter-
Marbury: Reconciling Skidmore Deference and Agency Interpretive Freedom,
56 ADMIN. L. REV. 1 (2004); Kenneth A. Bamberger, Provisional Precedent:
Protecting Flexibility in Agency Policymaking, 77 N.Y.U. L.
REV. 1272 (2002);
Richard J. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 GEO. L. J.
2225 (1997). The reader should consider the first of these cites a warning that this subsection addresses a topic that is a hobby-horse of the author.
76. 124 S. Ct. 1330 (2004).
77. Id. at 1335.
78. See generally id. at 1339-45.

Chapter 5: Judicial Review 99
by United States v. Mead Corp."
9
He thought that the simpler, correct approach would have been simply to extend Chevron deference to the
Department of Labor's interpretation of ERISA and affirm it as reasonable.
0
His reasoning underlying this conclusion hearkened back to a point he had stressed in his volcanic Mead dissent. In his view, a great virtue of Chevron deference is that when a court affirms an agency interpretation as reasonable, it does not commit itself to a single, definitive view of what a statute means.
The absence of a binding judicial gloss leaves an agency free to change its interpretation to reflect new learning and policies. Where Chevron does not apply, a court must determine a statute's authoritative meaning rather than merely determine whether an agency's view is reasonable, and the binding
stare decisis force of this gloss extinguishes agency interpretive freedoin?
Thus, according to Justice Scalia, one great vice of the Yates majority opinion was that its independent interpretation of ERISA robbed the Department of Labor of "the power (within the reasonable bounds of the text) to change the application of ambiguous laws as time and experience dictate."
8 2
Justice Breyer's concurrence in Central Laborers Pension Fund v.
Heinz" suggests that Justice Scalia's premise concerning the stare decisis force of independent judicial constructions may be vulnerable. In this case, the Court unanimously agreed that the anti-cutback provision of ERISA blocks plan amendments from expanding the categories of post-retirement employment that trigger suspension of payment of accrued retirement benefits. As in Yates, the majority engaged in an independent inquiry into the meaning of the statutory provision at issue." It then noted that its interpretation was "confirmed by a regulation of the Internal Revenue Service (IRS) that adopts just this reading."" Notwithstanding this reference to an IRS regulation, however, the Court's opinion nowhere mentions Chevron or Skid-
more deference." The overall effect is that the opinion reads as an
79. Id. at 1345 (Scalia, J., concurring).
80. Id. at 1345-46.
81. United States v. Mead Corp., 533 U.S. 218, 247 (2001) (Scalia, J., dissenting).
82. Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 124 S. Ct. 1330,
1346 (2004) (Scalia, J., concurring).
83. 124 S. Ct. 2230 (2004).
84. Id. at 2235-36.
85. Id. at 2236-37.
86. The likely reason the Court did not purport to defer to the IRS's regulation is that the agency confused matters both by contradicting the regulation in a pro-

100 Developments in Administrative Law and Regulatory Practice independent judicial construction that has the pleasant but unnecessary virtue of agreeing with the interpretation advanced by an administering agency. As such, according to Justice Scalia's description of the force of judicial precedent in Mead and Yates, the Court's interpretation in Central
Laborers' should bind the agencies that administer ERISA going forward.
But then there is Justice Breyer's one-sentence concurrence (joined by
Justices Rehnquist, O'Connor, and Ginsburg), which states, in full:
I join the opinion of the Court on the assumption that it does not foreclose a reading of [ERISA] that allows the Secretary of Labor, or the Secretary of the Treasury, to issue regulations explicitly allowing plan amendments to enlarge the scope of disqualifying employment with respect to benefits attributable to already-performed services. Cf. Christensen v. Harris County, 529 U.S. 576,
589 (2000) (Souter, J., concurring)."
In short, four justices in Heinz seem to suggest that an agency can trump a
Supreme Court construction of a statute with a regulation, and these four justices cite to the concurring opinion in a different case of a fifth justice (Justice Souter) in which he seemed to take the same position.
88
Perhaps the Court is moving toward something like the following: Even absent application of Chevron deference, the Court does not, by adopting an apparently independent judicial construction of an agency's statute that vision in the Internal Revenue Manual and by adopting a practice of allowing plan amendments of a kind the regulation seems to forbid. Id. at 2237-38. The
Court dispensed with this contradiction by noting that "neither an unreasoned statement in the manual nor allegedly longstanding agency practice can trump a formal regulation with the procedural history necessary to take on the force of law." Id. at 2238.
87. Central Laborers' Pension Fund v. Heinz, 124 S. Ct. 2230, 2239 (2004) (Breyer,
J., concurring).
88. In Christensen v. Harris County, a majority of the court refused to apply
Chevron deference to a Department of Labor statutory interpretation contained in an opinion letter and rejected that interpretation on its merits. 529 U.S. 576,
587 (2000). Justice Souter qualified his agreement with the majority with a onesentence concurrence, which states, in full: "1 join the opinion of the Court on the assumption that it does not foreclose a reading of the Fair Labor Standards
Act of 1938 that allows the Secretary of Labor to issue regulations limiting forced use." Id. at 589 (Souter, J., concurring).

Chapter 5: Judicial Review 101
agrees with the agency's current position, exclude the possibility that the agency might be able to talk the Court into deferring to a different agency interpretation as reasonable at some later date.
9
Mead holds that: "[A]dministrative implementation of a particular statutory provision qualifies for Chevron deference when it appears [1] that Congress delegated authority to the agency generally to make rules carrying the force of law, and [2] that the agency interpretation claiming deference was promulgated in exercise of that authority."
90
It also elaborated that implicit delegation of Chevron-type authority by Congress to an agency "may be shown in a variety of ways, as by an agency's power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent."1 The upshot of this framework is that agency interpretations produced via notice-and-comment rulemaking or formal adjudication will generally (but not always) net Chevron treatment. Outside these safe harbors there is a grey zone in which it is sometimes a struggle to determine whether a given inte.pretation falls on the Chevron or Skidmore side of the deference fence. Some recent results from this front follow.
Pharmaceutical Research and Mfgs. v. Thompson:
92
Plaintiffs argued that statutory interpretations underlying approval of amendments to Michigan's State Medicaid Plan by the Secretary of HHS were not entitled to
Chevron deference because, among other reasons, they were not the result of a formal administrative process. The chief problem with this argument
89. For another recent tea leaf suggesting the Court is drifting in this direction, see
Edelman v. Lynchburg College, 535 U.S. 106, 114 & n.8 (2002) (refusing to determine whether Chevron deference applied to an EEOC statutory interpretation with which the Court agreed as a matter of independent construction but also indicating that EEOC may have authority to depart from the Court's favored reading in the future).
90. United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)
91. Id. at 227.
92. 362 F.3d 817 (7th Cir. 2004).

102 Developmnents in Administrative Law and Regulatory Practice according to the Seventh Circuit was that it "overlook[ed] the nature of the
Secretary's authority."
93
The court observed that Congress has expressly delegated to the Secretary the task of determining whether to approve state
Medicaid plans and that, in carrying out this function, the Secretary "is charged with ensuring that each state plan complies with a vast network of specific statutory requirements."
9 4 The court's key (and slippery) move was then to characterize the Secretary's responsibility as signifying an "express delegation of specific interpretive authority" by which Congress "manifested its intent that the Secretary's determinations, based on interpretation of the relevant statutory provisions, should have the force of law." 95
Therefore,
Chevron applied.
Hospital Corp. of America v. Comm. of Internal Revenue:
6
In this case, petitioner HCA contended that a regulation issued without notice and comment by the Secretary of the Treasury was ineligible for Chevron deference under Mead because it had not been promulgated pursuant to a delegation of legislative rulemaking power. Treasury had issued this regulation pursuant to
Internal Revenue Code § 7805(a), which grants the Secretary authority to
"prescribe all needful rules and regulations" for enforcement of the Code. It should be noted that, in Boeing Co. v United States, the Supreme Court recently indicated that interpretive regulations promulgated pursuant to this provision should receive deference.
97
Rather than rely on Boeing, the Sixth Circuit dismissed HCA's deference argument based on its understanding of Mead. Its first move was to note that, under Mead, notice and comment is not a necessary prerequisite for applying Chevron deference to a rule.
99
It then implied that the outcome in Mead had turned on the Supreme Court's conclusion that Congress could not possibly have intended for Customs tariff rulings to enjoy the force of law given that 46 different offices in that agency issue 10,000 to 15,000 such rulings per year.
99
By contrast, the Treasury Department's power under § 7805(a) to
"'prescribe' needful rules and regulations" evidenced that Congress "clearly
93. Id. at 821.
94. Id. at 822.
95. Id.
96. 348 F.3d 136 (6th Cir. 2003).
97. 537 U.S. 437, 448 (2003).
98. 348 F.3d at 144.
99. Id. (citing United States v. Mead Corp., 533 U.S. 218, 232-33 (2001)).

Chapter 5: Judicial Review I103 intended" the department to be in charge of giving "content to ambiguous statutory terms."
100
Moreover, the regulations at issue were "arrived at centrally by the Treasury Department, after careful consideration."o' Thus, delegated authority existed; it had been properly invoked (by "careful consideration" at a "central" office), and Chevron applied.
0
Schneider v. Feinberg:1
2 Plaintiffs challenged regulations devised to guide determinations of the amount of compensation to be awarded to claimants from the September 11 Victim Compensation Fund. The Act that created this fund vests procedural and substantive rulemaking authority in the Attorney General and a Special Master, who used this authority to promulgate various regulations after notice and comment. One of these regulations authorized the Special Master to "develop a methodology and publish schedules, tables, or charts that will permit prospective claimants to estimate determinations of loss of earnings or other benefits."
03
The tables that were subsequently produced to accompany the regulations were not themselves subject to notice and comment.
0 4 The Second Circuit nonetheless concluded that, like the regulations themselves, they were eligible for Chevron deference because:
[u]nlike opinion letters, interpretive rulings, agency manuals, and enforcement guidelines, the tables are 'the type of legislative ruling that would naturally bind more than the parties to the ruling.' Mead,
533 U.S. at 232. They are meant to guide compensation, and they apply equally to all claimants seeking compensation from the
Fund.'
This analysis seems to suggest that an agency need not always leap through procedural hoops to invoke delegated authority to act with the force of law; sometimes, an agency can invoke that authority merely by issuing some sort of determination that purports to be generally applicable.
100. 348 F.3d at 145.
101. Id.
102. 345 F.3d 135 (2d Cir. 2003).
102. Id. at 140 (quoting 28 C.F.R. § 104.43).
104. Id. at 143.
105. Id.

104 Developments in Administrative Law and Regulatoty Practice
Chevron a. Natural Resources Defense Council v. Abraham'
0
Under
325(o)(1) of the Energy Policy and Conservation Act (EPCA), the Department of Energy (DOE) cannot issue an energy efficiency standard that "decreases the minimum required energy efficiency of a covered product."o
7
A final rule imposing more stringent requirements was published in
the Federal Register on January 22, 2001. After the change in Administrations, the Department took steps to delay implementation of the stricter standard. As part of this effort, it eventually noticed its intent to promulgate regulations amending the January 22 standards and "clarify[ing]" the point in time at which
325(o)(1)'s anti-backsliding provision would block its ability to do so.' Following public comment, the agency issued new rules to accomplish these ends. To get around its anti-backsliding problem, one of these regulations defined the statutory phrase "minimum required energy efficiency" to mean: an energy conservation standard for a covered product .
.. which is established by final rule that has modified this part [of the Code of
Federal Regulations] pursuant to a date DOE has selected consistent with the Congressional Review Act .. .
and any other applicable law,
or the date on which DOE completes action on any timely-initiated administrative reconsideration, whichever is later. 0 9
It did not escape the Second Circuit's attention that DOE had eviscerated the force of a statutory provision designed to limit the agency's discretion by putting itself in charge of determining when that limitation takes effect.
Among the court's several reasons for rejecting application of Chevron def- erence to this regulation, the court noted that it was quite unlikely that a
"responsible Congress would implicitly delegate to an agency the power to
106. 355 F.3d 179 (2nd Cir. 2004). This case is also discussed herein in Rulemaking
(infra 138-40).
107. Id. at 195 (quoting 42 U.S.C. § 6295(o)(1)).
108. Id. at 189-91.
109. Id. at 198 (quoting 67 Fed. Reg. at 36,406) (emphasis added by the court).

Chapter 5: Judicial Review 105 define the scope of its own power."
0
That the agency had noticed its intent to devise such a regulation was of no avail because the definition it subsequently promulgated had not itself been subjected to notice and comment."'
In addition, the rule looked to have been promulgated to deal with ongoing litigation.12
b. Coke v. Long Island Care At Home Ltd."
The plaintiff in this case raised a challenge to two Department of Labor
(DOL) regulations bearing on the scope of the "companionship services" exemption to coverage under the Fair Labor Standards Act. Both were promulgated after notice and comment. One of them, 29 C.F.R. § 552.6, defines the meaning of "companionship services" and was plainly subject to
Chevron deference because the agency had promulgated it pursuant to a statutory command that it provide a regulatory definition.
The other regulation, 29 C.F.R. § 552.109(a), extends application of the exemption to include employees "who are employed by an employer or agency other than the family or household using their services." This regulation, too, might appear to be a good candidate for Chevron given that: (a)
DOL had express statutory authority to define relevant statutory terms; and
(b) it had been produced via notice and comment.
The Second Circuit nonetheless determined that the regulation was not eligible for Chevron deference because it was "interpretive" rather than "legislative" and therefore lacked the force of law."
4
The court's use of this dichotomy is a bit confusing given that one might fairly say that one of the chief points of Chevron deference is to give something like the force of law to certainfavored interpretive rules. Stepping past this characterization quibble, the court's underlying reasoning led to a sound application of the Mead framework. It noted that DOL had included § 552.109(a) in a section entitled "Subpart B-Interpretations" rather than in "Subpart A-General Regulations;" also, in another regulation, DOL had expressly identified which definitions it had promulgated pursuant to its delegated statutory authority,
110. Id. at 199 (citation omitted).
111. Id. at 200.
112. Id. at 201.
113. 376 F.3d 118 (2nd Cir. 2004).
114. Id. at 131-32.

106 Developments in Administrative Law and Regulatory Practice and § 552.109(a) is not among them."' This regulation therefore failed to satisfy Mead's second requirement for Chevron treatment-agency invoca-
tion of delegated authority to act with the force of law. The DOL's use of notice and comment did not alter this fundamental point about its intent.
115. Id. at 131 (citing 29 C.F.R. § 552.2(c)).