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
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
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
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
 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
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
Did Congress require exhaustion for
prisoner Biven's claims?
 No
Does the prisoner have to exhaust his
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
 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
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
 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