Too Early, Too Incomplete, Or Too Late: Ripeness, Exhaustion, and Mootness

In 1963, the FDA told drug manufacturers that every time they used a brand name, on a label, in an ad, anywhere, they had to print the generic name alongside it. The rule took effect the day it was published. Thirty-seven manufacturers, making more than 90 percent of the country's prescription drugs, thought it exceeded what Congress had authorized. Their options were to reprint everything they owned, or keep their labels and wait to be prosecuted for selling misbranded drugs. For companies whose business depends on physicians trusting them, that second option isn't really an option.

Abbott Laboratories v. Gardner let them sue before anyone enforced anything, and it reshaped how rules get challenged. Gwen and Marc use it to open up the three doctrines that decide when an administrative case can be heard: ripeness for too early, exhaustion for not yet through the agency's own process, and mootness for too late.

The doctrines come from different places, and that turns out to matter more than whether they sound strict. A rule the courts built, the courts can bend. A rule Congress wrote comes with only the exceptions Congress wrote into it. And a constitutional limit can't be forgiven by anyone.

In this episode:

• Abbott Labs and the presumption that judicial review isn't cut off without clear and convincing evidence that Congress meant to cut it off
• Harlan's two-part ripeness test, fitness and hardship, and why Toilet Goods Association came out the other way on the same day
• National Park Hospitality Association, and why a purely legal question still isn't automatically fit for review
• Why ripeness barely bites anymore, and the Court's open doubts about whether prudential ripeness survives
• APA section 704, Darby v. Cisneros, and why courts can't impose exhaustion requirements of their own
• Mandatory versus jurisdictional after Santos-Zacaria, and why the difference decides whether a missed deadline can ever be excused
• A disability claimant whose appeal goes in two weeks late, and what Smith v. Berryhill gets her
• Issue exhaustion for regulated companies, and why an objection nobody raised during the comment period may be forfeited
• McCarthy v. Madigan, the Prison Litigation Reform Act, and Ross v. Blake: the clearest wall in the whole area, and the one word Congress left as an exception
• Voluntary cessation: the Sacketts, FBI v. Fikre, and why a promise hedged with "based on currently available information" isn't enough
• Al Otro Lado, where keeping the case alive is what let the government win it
• Capable of repetition yet evading review, which started with railroad rates in 1911, and the same-party requirement people forget
• A detention case that died in September because a governor issued a pardon three days before a brief was due
• The real asymmetry: not that the doctrines are rigged, but that one side is in these cases every day and goes looking for another vehicle when one fails

Next week: the decisions courts say aren't reviewable at all, with Heckler v. Chaney and Patel v. Garland.