Exceptions to Finality Requirement for Judicial Review

Generally, an order should be final before a party to the case can seek judicial review.  This rule helps to maintain continuity and streamline litigation.[i] A party seeking review must show that s/he suffered legal wrong because of the challenged agency action, or is adversely affected or aggrieved by that action.[ii]

In cases where there is a clear jurisdictional defect it will constitute an exception to the final order requirement.  When jurisdiction is in dispute in a case the agency should make initial determination of its jurisdiction.

According to the Model State Administrative Procedure Act (1981), a party can seek judicial review of non – final administrative agency decisions if expressly authorized by the Act for judicial review, and if postponement of judicial review will result in irreparable harm to the party.

According to the doctrine of ripeness cases are declared not ripe when the injuries are too speculative, or never occurring.  The rationale behind the ripeness doctrine is that a court should not issue premature judgments based on abstract disagreements.[iii] However, as an exception to the doctrine, early reviews can be conducted in a case if the legal question is ripe for resolution and delay means hardship.  A party can be in unnecessary hardship when an agency action results in a direct and immediate harmful effect on the party, or a change in the day-to-day behavior of the party.[iv]

The hardship can be due to exposure to criminal penalties for noncompliance, a loss of the benefits of a government program, such as medical benefits under Medicare, or damage to the living environment.

A collateral order exception can also be provided to the finality rule.  According to the exception immediate appeals from orders that do not fully and finally end litigation among parties can be allowed.[v] The exception can be applied only when the party appealing from an interlocutory order shows that the order determines an issue conclusively, the issue determined is different from the merits of the case, and it is not reviewable on appeal from a final judgment.[vi]

Conditions to appeal from an interlocutory order in an administrative action are as follows:[vii]

  • The interlocutory order should be an order separable from the main issue.
  • There should be a conclusive determination of a collateral issue in the interlocutory order.
  • The order should be of utmost importance that a court cannot deny review.
  • Postponement of judicial review in the interlocutory order can result in irreparable harm to the party.

[i] Digital Props. v. City of Plantation, 121 F.3d 586 (11th Cir. Fla. 1997)

[ii] Media Gen. Operations, Inc. v. Herman, 152 F. Supp. 2d 1368, 1371 (S.D. Ga. 2001)

[iii] Nat’l Park Hospitality Ass’n v. DOI, 538 U.S. 803 (U.S. 2003)

[iv] Devia v. NRC, 492 F.3d 421 (D.C. Cir. 2007)

[v] United States v. Baker, 603 F.2d 759 (9th Cir. Wash. 1979)

[vi] In re Asbestos-Related Litigation, 1991 U.S. App. LEXIS 22148 (4th Cir. 1991)

[vii] Will v. Hallock, 546 U.S. 345 (U.S. 2006)


Inside Exceptions to Finality Requirement for Judicial Review