Timing Judicial Review of Agency Interpretations in Chevron's Shadow

Abstract

The Administrative Procedure Act (APA) permits judicial review of "final agency action." Agency action is "final" when it is both the "consummation of the agency's decision making process" and a decision by which "rights _or obligations have been determined;' or from which "legal consequences will flow." Some forms of agency action uncontroversially satisfy both of these conditions for finality. For example, "legislative rules" promulgated by agencies pursuant to congressional delegations of policy-making authority after a period of public notice and comment are certainly "final agency action" that can be challenged before their application. Other forms of agency action pose challenges for the finality doctrine. In particular, agencies sometimes issue non­legislative "interpretative rules" construing arguably ambiguous statutory provisions. While these interpretative rules are often the consummation of an agency's decision-making process, do they determine rights or obligations? Do legal consequences flow from their issuance?