Soundboard Ass’n v. FTC

Federal agencies dictate permissible pollution levels, regulate immigration enforcement, and much more, yet often claim they have not decided to do anything at all. 1 × 1. See, e.g. , Sierra Club v. EPA, 873 F.3d 946, 953 (D.C. Cir. 2017) (holding guidance document changing pollution regulation not final agency action); California ex rel . Becerra v. Sessions, 284 F. Supp. 3d 1015, 1031 (N.D. Cal. 2018) (DOJ asserting no final agency action in immigration context). Show More This perplexing behavior stems from the finality requirement, which serves as a threshold question for any party challenging agency action under the Administrative Procedure Act 2 × 2. Ch. 324, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551, 553–559, 701–706 (2012)); see also 5 U.S.C. § 704 (requiring “final agency action” for a lawsuit to proceed). Show More (APA). A court must ask: Has the agency really reached a decision? And did that decision produce real, legal consequences? Both answers must be “yes” for a party to have her day in court. 3 × 3. Bennett v. Spear, 520 U.S. 154, 177–78 (1997). Recently, in Soundboard Ass’n v. FTC , 4 × 4. 888 F.3d 1261 (D.C. Cir. 2018). the United States Court of Appeals for the District of Columbia Circuit held that an informal staff guidance document did not constitute final agency action and was therefore unreviewable. 5 × 5. Id. at 1274. In Soundboard , the D.C. Circuit articulated a formal test of finality that stands in tension with recent precedent emphasizing functional considerations. As a result, Soundboard could allow agencies to hide behind formal tests of finality to avoid judicial scrutiny of their actions, including ones that negatively impact lives and organizations across the country.