Matters Not Amounting to Final Agency Action and Therefore Not Reviewable

Generally, judicial review can result only from a final order. This rule is applicable in administrative adjudications also. When a matter is only decided partially, no judicial review can result from the order.[i]

An agency action, which is not final is not subject to judicial review.[ii] An agency action is not final when an agency decides to assert original jurisdiction.[iii] When an agency action requires a party to participate in an agency proceeding, or when an agency eliminates the right to enforce a prior decision it cannot be considered as final. It is not a final decision of an agency when it determines liability but not damages. An order of an agency remanding the case to the administrative law judge for the taking additional evidence and not awarding compensation or monetary benefits is not a final agency decision. When an agency decides to propose legislation it does not amount to a final order, which is reviewable. While drafting internal agency rules, an agency should not confer on the petitioner the right to judicial review of cases that are not finally decided.

A rule or regulation created by an agency according to the Administrative Procedure Act (APA) is not an agency action ripe for judicial review. The rule or regulation can be brought forward for judicial review only when it is applied on certain situations in a manner that the rule harms the claimant.[iv] However, a statute can enable the creation of an administrative regulation, which can be reviewed according to the APA.[v]

A complaint by an agency that the agency reasonably believes that person is violating a statute is not a final action. Such actions are not reviewable under APA.[vi] A complaint against an entire agency program and not a single rule or regulation also is not a final agency action. Defects in an entire agency program cannot be laid before courts for judicial review under APA.[vii]

Judicial review is generally, refused when the agency action is not final. When an agency action is only anticipated, or when an action is pending for final disposal judicial review can be denied. Non-final agency actions are interlocutorily reviewable in extraordinary circumstances when there is a clear violation of law.[viii]

Even when an agency is exceeding its jurisdiction an administrative proceeding will not be interfered by mandamus or injunction when denial of such relief will put the claimant only to unnecessary expense incident to the proceeding, and no other harm. However, a decision that immediately exposes a person to the threat of penalties is reviewable, and the Declaratory Judgment Act can provide remedy against threatened or pending administrative action.[ix]

According to APA, preliminary, procedural, or intermediate actions or rulings of an agency, which cannot be reviewed in the interlocutory stage can be reviewed at the time of final agency action.[x] However, in extreme conditions where an administrative action deprives a person’s rights the action can be reviewed even before it reaches a final stage. In cases where an agency is exercising power beyond its jurisdiction to act in a manner contrary to the statute, and violating the constitutional rights of the parties’ judicial review over interlocutory orders is permitted.

A stay order is an interlocutory order and not a final judgment because it does not resolve issues that would determine the case absolutely. A denial of a motion to intervene or a denial of a motion for summary judgment is not ordinarily reviewable except upon review of the final agency action. However, if a statute permits courts can intervene in such cases also.[xi]

According to Model State Administrative Procedure Act of 1981, a nonfinal agency action is reviewable only if it is likely that the party to the action will qualify for judicial review of the related final agency action, and the postponement of judicial review would result in irreparable harm to the party.[xii]

In matters where the statutory definition of agency action includes failure to act, if an agency is studying whether or not to take action in a matter, it is not ripe for judicial intervention. Pursuant to APA, an agency action is not final for purposes of judicial review if the action is only tentative or the ruling of a subordinate official.[xiii]

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

[ii] 5 USCS § 704

[iii] National Treasury Employees Union v. Federal Labor Relations Authority, 712 F.2d 669 (D.C. Cir. 1983)

[iv] Delano Farms Co. v. Cal. Table Grape Comm’n, 2009 U.S. Dist. LEXIS 100093 (E.D. Cal. Oct. 27, 2009)

[v] 5 USCS § 702

[vi] 5 USCS § 704

[vii] 5 USCS § 702

[viii] Gulf Oil Corp. v. United States Dep’t of Energy, 663 F.2d 296 (D.C. Cir. 1981)

[ix] Stewart v. Hannon, 1980 U.S. Dist. LEXIS 13016 (N.D. Ill. May 19, 1980)

[x] 5 USCS § 704

[xi] Bhd. of R.R. Trainmen v. Balt. & Ohio R.R., 67 S. Ct. 1387 (U.S. 1947)

[xii] Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407 (U.S. 1942)

[xiii] Dalton v. Specter, 511 U.S. 462 (U.S. 1994)


Inside Matters Not Amounting to Final Agency Action and Therefore Not Reviewable