Is Your Claim Ready for Prime Time?
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Ripeness
Finality
Exhaustion
Ripeness
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Ripeness, finality, and exhaustion are hard to
separate in many cases
 Ripeness is whether it is the appropriate time
for the court to review the claim
APA
 The APA is silent on ripeness and exhaustion
 However, APA 704 only authorizes the review of
final agency actions
Instant Ripeness
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The agency has brought an enforcement action
against your client
The agency has promulgated an unconstitutional
regulation
CBS v. U.S., 316 U.S. 407 (1942)
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FCC issues a regulation restricting the network
exclusivity provisions in affiliate contracts with
radio stations
CBS says that this will cause the affiliates to
demand different terms in their contracts, and
thus the dispute is ripe because they are harmed
The FCC says it will not be ripe until there is an
enforcement action
Is the Regulation Ready for Review?
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The FCC says it is just policy, and no more
reviewable than a press release
 Think about this in terms of the modern cases
The court finds that it is final and that it is affects
the behavior of the regulated party
 What would the affiliate station lawyer say
about the reg?
 It is self-enforcing in that the parties must
change their behavior or risk legal action
Frozen Foods Express v. US, 351 US 40
(1956)
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The Court found that a 71 page report detailing
the ICC's interpretation of a narrow statutory
provision was reviewable.
This was despite the agency arguing that the
interpretation was not binding
Remember, however, that getting the right to stay
in court is not the same as winning.
This is also a legal question, which the courts are
more likely to review
Abbot Labs v. Gardner
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What did the statute require?
 Generic names had to be on labels and other
printed material
What did the FDA require through a regulation?
 FDA promulgated a reg that required that the
generic name of a drug be used every time the
brand name was
This is facial challenge
Why did Abbot and others want preenforcement judicial review?
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Compliance would be very costly, but they could
not risk the enforcement penalty.
Abbot claimed great hardship if it had to choose
between complying and getting nailed for a
violation
 Think about relabeling stuff in inventory, and
how much stuff you have to thow out because it
expires while you are working out the new label
What did plaintiffs argue was wrong with
the regulation?
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Overstepped agency authority
Why did the FDA claim the action was not ripe?
 FDA claimed it was not ripe because it had not
been applied to any given product
What is the first question in a ripeness
analysis?
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First question is always - does the enabling act
limit pre-enforcement review?
What is the test?
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What is the fitness of the issue for review?
What is the harm from not doing pre-enforcement
review?
Is this a question of law or fact?
Does it depend on agency discretion?
Does defendant have a significant injury?
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Must the petitioner make significant changes in its
behavior or risk severe penalties?
Is there an alternative means of review - say
through an agency process?
Toilet Goods v. Gardner
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FDA required inspector access to the plants
as a condition of certification of the safety of
the agents in the product
How was the injury requirement different
in this case and Abbott?
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In this case the court said the injury requirement
was not met - what would it cost to let the
inspector in?
What is the equitable problem with defendant's
complaint?
 More to the point - why would you want to
exclude the inspector?
Gardner v. Toilet Goods
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Companion case
Did the agency exceed its authority in a regulation
establishing definitions for food additives?
This is like Abbott
Policy Implications
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How does expanding pre-enforcement review
interfere with agency practice?
Is it better for regulated parties to be allowed preenforcement review?
 What is the downside of post-enforcement
review?
Statutory Limits
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Congress can encourage pre-enforcement review
by requiring that challenges to discretionary
judgment in making a reg be brought within 60-90
days after the order is final
Can you attack the reg later?
 If the agency brings an enforcement action, you
can challenge the then
 You can ask for a new or changed reg and
appeal the denial
What if Your Client Did not Know About
the Reg?
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Just not knowing is not enough
Must show that you client had a good reason for
not knowing or that the agency blocked his efforts
to get into court
What if the agency changed the definitional
section years later, make all of the reg apply to
your client?
High or Low Point – National Automatic
Laundry v. Shultz, 443 F2d 689 (1971)
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The court allowed the review of an advisory letter
Why Does Hardship Matter?
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If the matter is otherwise reviewable, why does it
matter if there is hardship?
Shouldn’t the court go ahead and review the
agency action when it is ready, without regard to
hardship?
NPHA v. Interior, 538 US 803 (2003)
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Court backs down from National Automatic
Lanudry
Finds the hardship is important in judicial
economy
Finds that making the defendant wait until there is
an enforcement action allows the agency to add
more factual material to the record, facilitating
review
Finality
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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
How does the court distinguish finality
from exhaustion?
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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.
FTC v. Standard Oil of California (1980) –
(not in the book)
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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)
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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?
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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