Are Agency Advisory Opinions Worth Anything More than the Government Paper They're Printed On?

Abstract:     
Are agency advisory opinions ("interpretative rules") "final agency action" and thus judicially reviewable? Although some commentators have labeled the concept of "final" agency action as "elusive and escap[ing] definition," and other commentators have framed this issue "under such murky rubrics as ripeness, prematurity, exhaustion, finality, and standing," this issue boils down to a straightforward question of statutory interpretation.

Broken down into standard logical form, the categorical syllogism is as follows.

Major premise: Final agency action for which there is no adequate remedy in a court is subject to judicial review. (5 U.S.C. Section 704)

Minor premise: Agency advisory opinions are final agency actions for which there is no adequate remedy in a court.

Conclusion: Therefore, agency advisory opinions are subject to judicial review.

This article seeks to establish the truth of the minor premise. In other words, this article will show that agency advisory opinions are final agency action (for which there is no adequate remedy in court). If established, then the argument is valid and the conclusion (agency advisory opinions are subject to judicial review) must be accepted.

Part I provides an overview of the "finality" doctrine, focusing on the text and legislative history of the APA as well as the seminal Supreme Court case on the issue of "finality," Abbott Laboratories v. Gardner. Part I also provides a brief introduction into agency advisory opinions, or "interpretative rules." Part II summarizes the reasoning employed in two leading court decisions that reached opposite conclusions, one case affirming judicial review of interpretative rules (Ciba-Geigy), the other case denying judicial review (Air Brake Systems). Part III analyzes the two contrasting rationales employed in those two cases and concludes that judging interpretative opinions as "final" agency rules is not only the most logical interpretation but also the most practical.

Number of Pages in PDF File: 28

Keywords: Administrative Procedure Act, interpretative rules, interpretive rules, judicial review, finality, EPA, NHTSA

JEL Classification: K23, K32

Accepted Paper Series