Judicial Review of Agency Action: The Machinery Behind What Everyone Calls Error Correction

The Loper Bright fishermen got a court to answer the question they came to ask. Most people who sue an agency don't. Their cases end somewhere upstream of the question — dismissed for standing, or dismissed because the agency action wasn't yet "final," or dismissed because the challenger didn't exhaust some internal process, or dismissed because the whole category of action was one courts have decided not to look at. Not a bad answer. Not an answer that they lose. No answer at all. The picture most people carry of judicial review — the agency does something, a court either fixes it or doesn't — describes what happens in a thin slice of cases. This episode is about the machinery that decides which cases fall in the slice.

The slice is a small one, and it's not randomly cut. This is the season opener for a run of episodes on how judicial review of agency action actually works — not as it's described in casebooks and press coverage, but as it plays out in federal court, where the words in the Administrative Procedure Act are doing much less of the work than the judicial constructions built on top of them. The dial on nearly every doctrine that governs judicial review is in judicial hands, and it's the same institution that's being reviewed for how much it reviews.

The APA gave the courts a workload they had never carried. Before 1946, review of agency action was patchy — some organic statutes provided for it, some didn't, doctrines varied agency by agency. The APA was meant to standardize the field. What it produced instead was a piece of statutory text that Congress wrote, and a set of controlling doctrines the courts developed to interpret it. Section 706 tells reviewing courts to decide "all relevant questions of law" and to set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," among five other grounds. Congress wrote the words. Congress didn't write the intensity setting. The intensity setting is where cases are won and lost, and the intensity setting has moved dramatically over the last several years without a single comma of the statute changing. Loper Bright is the most visible example: Section 706 read exactly the same on the morning Chevron came down in 1984 and the morning Loper Bright overruled it in 2024. The words didn't change. What the court is supposed to do with them did.

Loper Bright is also, as Gwen puts it in the episode, "one of the least representative cases I could have opened with." The fishermen got a court to answer their question. The much larger group of would-be challengers never gets that far. Standing filters out the person downwind of a plant the EPA hasn't pursued — she's breathing dirtier air, and the fact that millions share the harm doesn't erase it, but she has to trace her particular injury to this particular non-enforcement and show a court order would fix it. Beneficiaries lose that trace often enough that the pattern is unmistakable. The company the same rule regulates gets in easily — the rule tells it to spend money, and that's a concrete injury nobody argues about. Same doctrine, sharply asymmetric results. And "standing" itself is a doctrine of remarkably recent vintage: injury in fact as a named test arrived in 1970, the full three-part apparatus consolidated in Lujan in 1992. Before that, standing was messier, more statutory, and considerably more open to exactly the kind of plaintiff who now loses. When a court says a citizen lacks a "case or controversy," it isn't reading that off the page of Article III. It's applying doctrine the judiciary developed, mostly within living memory, about how much of this work it will take on.

Finality does similar work at a different point. Courts won't review agency action until the agency has finished acting, and what counts as finished isn't in the statute either — it's in Bennett v. Spear, a 1997 case that supplied the content Congress didn't. Agencies write against that test. Guidance documents, frameworks, pilot programs, letters that tell a landowner the agency currently views his property as protected wetlands without formally ordering him to do anything — much of the modern fight over agency guidance is about whether an agency can accomplish what a rule accomplishes without throwing the switch and making the action reviewable. While the agency thinks out loud, the landowner can't build, can't sell, can't finance, and can't sue, because nothing is final to sue about. This can cost people years.

Then there are the categories courts have placed outside review entirely. Heckler v. Chaney makes an agency's decision not to enforce presumptively unreviewable. Congress can preclude review by statute, and where it does, the Court has read the preclusion broadly — Patel v. Garland (2022) held that a jurisdictional bar on "discretionary determinations" in immigration cases reaches not just the final decision but the factual findings underneath it. The parallel to Mullin v. Doe is close: widen the noun, widen the reach, and the door is closed on questions Congress said the agency had to consider at all. The White House ballroom case sits in the same territory — the Court effectively greenlit an action nearly everyone agreed was probably unlawful, because the challengers couldn't get past the door.

The episode ends with a disagreement between the hosts worth naming. The standard story about the growth of these gatekeeping doctrines is institutional reluctance — the courts, handed a new workload by the APA, developed doctrines that let them decline pieces of it. Marc pushes back: some of what looks like reluctance is just ordinary legal work. Article III does say "cases and controversies." The APA does say "final agency action." Somebody has to construe what those words mean. Gwen agrees, but with a sharpening: the same institution answers every one of those construction questions, and the answers decide cases. The words don't. And the pattern of the answers over the last several decades is not neutral about who gets in. Standing narrowed over roughly the same forty years the administrative state grew. Regulated parties get in reliably. Beneficiaries don't. The direction of movement recently is sharper still: courts are more willing to override an agency's judgment on the merits than at any point in living memory, but not correspondingly more willing to hear from the people the agency's actions affect. A generation ago, you'd have described the Court as deferential on the merits and stingy at the door. The merits stinginess is gone. The door stinginess is not.

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Full Transcript

Opening

Gwen: Hello, and welcome to Administrative Remedies, because you can't fix what you don't understand. Brought to you in part by the University of Tulsa College of Law's Mabee Legal Information Center. I'm Gwendolyn Savitz, an associate professor here at TU.

Marc: And I'm Marc Roark, a professor at the College of Law. We'll be breaking down complex doctrines with real-life analogies and examples, to demystify the world of administrative law for everyone trying to understand how government actually works.

Gwen: Agencies are the main way the federal government gets things done. It's not through Congress, for reasons we'll be addressing over the course of the series.

Opening hook

Gwen: All right. Marc, you remember the herring fishermen.

Marc: Yeah, from last season. We had Loper Bright, the case that overruled Chevron.

Gwen: Right. Loper Bright Enterprises sued the Secretary of Commerce in federal district court in D.C., and that lawsuit had no trial, no depositions, nobody developing facts through discovery — which is ordinarily not available in a case like this at all. It was decided on cross-motions for summary judgment, and that was on the agency records created before anyone filed anything.

Marc: And the rule itself was about the monitors. NOAA, the National Oceanic and Atmospheric Administration, said Atlantic herring boats had to carry a federal monitor aboard, who they also had to pay — around $700 a day. The company didn't think Congress had authorized that cost shift.

Gwen: Right. So the district court granted summary judgment to the government. The D.C. Circuit affirmed. And then the Supreme Court took it and used it to end forty years of Chevron deference.

Marc: So it went through the regular courts, but nothing that happens in an ordinary case happened in it.

Gwen: It's kind of more than that. The absence of a trial isn't the strange part. Most civil cases never reach one. People who practice know the overwhelming majority of federal civil cases end long before anyone picks a jury. That's ordinary.

Marc: You're not saying that what's unusual here is that it ended without a trial.

Gwen: Right. It's that nobody was ever building toward a trial in the first place. In ordinary litigation, the case is constructed in the shadow of a trial that probably won't happen. You take the deposition because you might have to prove the thing. Summary judgment is a filter. It screens out the cases that don't need trying. In an APA case, there's nothing to try from the first day. The record generally closed before the complaint was filed.

Marc: And that has to change what the motion is doing.

Gwen: Right, it does. So in ordinary litigation, summary judgment asks whether there's a genuine dispute about a material fact, and whether that would require a trial. Here, the parties file cross-motions, not because the facts happen to be undisputed, but because the court isn't in the business of finding facts at all.

Marc: So, borrowed form, but different function. The same motion doing a job the rule wasn't written for.

Gwen: Right. The judge isn't finding out what happened. The agency already found out what happened, wrote it down, and handed the writing to the court. The question for the judge isn't who's telling the truth. It's whether the thing in the file can stand.

Marc: And that's true whatever courthouse you start in.

Gwen: Right. Whichever courthouse you start in, and which level of court. And that isn't the challenger's choice. This is a little weird. Congress decides, statute by statute, which court litigants will go into. Some go straight to a court of appeals on a petition for review, with no district court at all. Others start right where Loper Bright did, in the district court.

Marc: So challenges to different rules take entirely different paths through the federal courts, depending on which committee wrote which organic statute in which decade.

Gwen: Right. And nobody's ever tried to make this a little more uniform. The Administrative Conference has said Congress ordinarily should send challenges to notice-and-comment rules straight to the courts of appeals. They've been saying this since 1975. They most recently adopted it again as their official statement in 2024.

Marc: And Congress hasn't taken it up.

Gwen: No, not across the board. Congress has done it in plenty of individual statutes. That's why the direct review route exists at all. But what hasn't happened is a general rule. And there's a limit in the recommendation itself. Its drafting advice at this point is just for future statutes.

Marc: So even if Congress adopted it wholesale tomorrow, every statute already on the books keeps whatever route it happens to have. The map we've got stays exactly as it is.

Gwen: Right. And Congress could obviously reach the existing statutes if it wanted to. One generally applicable provision redirecting review of rules would do it. And they could do that without having to go through each organic statute separately. But that isn't what has been recommended, and it certainly isn't on anyone's agenda.

Marc: So the map stays what it is, not because it can't be changed, but because changing it has never been worth anyone's trouble. The political juice just wasn't worth the squeeze. An accident of drafting with no expiration date.

Gwen: Right. And so right now, Loper Bright is the case everyone knows. And if you don't, go back to Season One, Episode Thirteen. It's also one of the least representative cases I could have opened with, because the fishermen got a court to answer the question that they came to ask. Lots of people who sue an agency never get an answer to their question at all. Not a bad answer, not an answer that they lose. No answer. The case ends somewhere upstream of the thing they were complaining about.

Marc: And that's not the obvious picture, though. The picture is, the agency does something you think is wrong, a court takes a look and either fixes it or doesn't. That's how everyone describes this — that this is error correction.

Gwen: Right. So let's say judicial review is error correction. And it is, sometimes. There are cases this season, toward the end, where we'll see a court finds an agency's reasoning is defective and says so, and the agency has to go back and start over. That happens, and it can make it a little hard to see clearly all the times it doesn't. Basically, the surface story is true often enough to be believable.

Marc: But not often enough to be the whole story.

Gwen: Definitely not. So underneath the surface is a set of doctrines that decides what the correction can reach. Whether you're the kind of person who can complain. Whether the thing you're complaining about counts as done yet. Which documents the judge can look at. Whether a defect the court agrees is real gets to matter. Whether winning gets you anything. None of these is about whether the agency erred. Each one determines whether the error is ever reached.

Marc: So then the first question is, who built the part nobody sees?

Gwen: Some of it is Congress. More than some people think. But essentially, the dial on every one of these doctrines is in judicial hands. And that's true even where Congress wrote the words. That's the entire season. We're looking at the different things that are happening in each one. What's actually going on, who controls it, and what that means. Because that's often not what the name of the doctrine suggests.

Marc: And you're not telling me in advance how those will come out.

Gwen: Right, because they don't come out the same way. Some of these levers do exactly what they advertise. Some do something else. One or two do the opposite. But it's more complex than it's presented, particularly when we're looking at what's generally covered in first-year con law.

Segment 1 — What the surface hides

Gwen: All right, so let's start with what judicial review of agency action is as a proceeding, because the appellate analogy breaks pretty quickly. On a normal appeal, the record was built by two adversaries in front of a neutral third party. In an APA case, the record was assembled by the party you're suing.

Marc: And no one in the room thinks that's remarkable.

Gwen: Right, because that's how the system was built. It's a separate proceeding authorized by statute, usually the APA, sometimes a more specific organic statute. And the court is just asking whether the agency acted lawfully, which overlaps with error correction, but it isn't the same thing. A court reviewing an agency isn't hunting for mistakes in the proceeding below. It's asking whether an exercise of government power stayed within its bounds.

Marc: So then the word review is doing some damage here. It sounds like a second opinion, and it isn't really a second opinion. Nobody is asking whether the agency made the better call. They're just asking whether it was allowed to make the call it made.

Gwen: Yeah, kind of. But what follows kind of divides in two. So some of the season is about what stops a court from ever reaching that question. The rest is about what the question turns into once the court does reach it.

Marc: So one half is the door. The other half is what's in the room.

Gwen: Yes. And Loper Bright is in the room, not at the door. Nothing blocked those fishermen. The court answered what they were asking. What changed is what answering had come to mean. Now it means a judge exercising independent judgment about the statute, rather than checking whether the agency's reading was reasonable. Same proceeding, same statute, a different job for the judge. And the Court changed what's going on there, even though no statute changed.

Marc: So lots of people listening will have spent two years watching courts and the executive branch fight in public, and they're going to assume, well, that's what this season is about.

Gwen: Yeah, and it is and isn't. So the main reason for that is agencies. The APA governs review of agency action. The president is not an agency under the statute. An executive order standing alone, which is how Trump generally acts, isn't something anybody challenges under the APA. There's no rule to set aside.

Marc: But that doesn't mean that executive orders are unreviewable.

Gwen: Right. It means they get challenged on other theories. On constitutional claims, on arguments that an official exceeded what the statute allows. But often the target isn't the order. It's the agency carrying it out. The order says do this. The agency does it. And then the agency doing that thing becomes agency action. That's what the stuff in this season mostly applies to.

Marc: Though I wouldn't put it as the news being one thing and this being another. A great deal of what's in the news does turn out to be administrative law. Loper Bright was in the news. The removal cases are. Those show up in news media cycles.

Gwen: Right. So most weeks, a ton of stuff in the news is agency stuff. What's changing is the mix, though. This president routes less through agencies than his predecessors did. He signs the order instead of starting the rulemaking. So more of what people are watching right now is a constitutional fight than an administrative fight. And that's a fact about how this administration operates, rather than about the general field of administrative law.

Marc: So then anyone learning the subject from the news right now is getting really half the story.

Gwen: Yes. And this will probably change in the next administration, one way or another. The machinery doesn't move when the sample changes, which is the reason to learn the machinery rather than what's going on right now. It's also a large enough subject that what's going on right now is next week's episode all on its own.

Marc: Okay, so noted. We're going to talk about levers, then.

Gwen: Yes. Actually, we're going to need to do a couple episodes trying to keep up with current events, because there are so many current events. This week, we do the overview. Next week, we talk about challenging executive orders right now. The week after that, we'll do standing as it has traditionally been. And then the week after that, we'll do standing as it's being challenged right now. So we're trying to alternate between an episode that will kind of give a general overview of what the topic is, and an episode that will speak to all of the stuff that's happening right now.

Marc: And my instinct says that no courts are really going to touch some of these problems that are coming down the pike. So maybe they see these things, maybe they don't. But this is the agency thinking out loud. And frankly, courts don't review thinking.

Gwen: Right. So that's going to be a problem when we get to finality. Courts won't review agency action until the agency's finished acting. You could think of an EPA enforcement office that sends a landowner a letter. Not an order to do something, just a letter saying that the agency currently views the property as protected wetlands and could pursue penalties. So for a long time, saying that that was not final and no court would touch it — that was the law. And it could cost people years of their lives. While the agency thinks out loud, the landowner can't build, can't sell, can't finance, and can't sue the agency, because nothing is final to sue about.

And now the part that matters. Where does the rule come from? So Congress said that you get judicial review of final agency action. But the content that we use for that is coming from a 1997 case called Bennett v. Spear. Congress supplied the noun, but the courts supplied the meaning, and the meaning is where the work happened.

Marc: And the agency writes the document. If the test turns on whether the agency's action has legal consequences and marks the end of its process, then the agency drafting the letter has a pretty good idea of how to draft a letter that isn't final.

Gwen: Right. And so that's another hand on this lever, and we'll spend an entire episode talking about it. But look at how this sounds. This sounds like housekeeping. Just wait until they're done. What it decides is whether people can get reviewed at all. And two sets of people control it. We have the judges who are saying what final means, and we have the agency lawyers who are drafting against that.

Marc: Yeah, I mean, this sounds so much like how the Court has thought about zoning issues over the years. And zoning is an administrative action, albeit at the local level. But one of the things I've always told my students about zoning actions is, if I'm a zoning commissioner and I want to make my zoning plan bulletproof, I'm going to say two things about it. I'm going to say that it's comprehensive, and I'm going to say that it has been well-reasoned through the course of the zoning commission. Because the court has shown it's just simply not going to look behind the veil of those two questions.

Gwen: Yeah. Some of the stuff this time is going to be a court saying where it won't bother to look, and agencies responding to that. And some of it is going to be a court looking more specifically at what the agency does. There are a bunch of doctrines that govern whether anyone reaches the question. And then there are also doctrines that govern what happens when they do. And sometimes what happens is exactly what people think happens.

Marc: So then what's the limit?

Gwen: So the other thing we'll be talking about is what happens when the court does reach a decision. So the court corrects the reasoning and sends it back. It never says, you have to require airbags. It says, consider the alternatives. Explain yourself. Don't abandon a decade of work without showing your math.

Marc: So there's reasoning, but not outcome. Which lets a determined agency arrive back where it started, just with better paperwork.

Gwen: Yes, and the agency does that sometimes. Sometimes the paperwork requirement stops an agency cold, because the reasoning might not be something it can write down.

Segment 2 — Section 706, and what it doesn't say

Gwen: All of this is running on just a tiny bit of statute. 5 U.S.C. 706, the judicial review provision of the APA. And that is the 1946 act that built the architecture here, although it's been updated since then. Anyway, this tells the reviewing court what to do, and it does it in three moves. So we're going to start with the opening instructions.

Marc: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.

Gwen: That's the sentence that Loper Bright was leaning on. The reviewing court shall decide all relevant questions of law. That's the first of two things a court can do.

Marc: The reviewing court shall — one, compel agency action unlawfully withheld or unreasonably delayed.

Gwen: That's the remedy for an agency that won't act. And then the second numbered instruction, which is a lot of the season.

Marc: And two, hold unlawful and set aside agency action, findings and conclusions found to be — A, arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. B, contrary to constitutional right, power, privilege, or immunity. C, in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. D, without observance of procedure required by law. E, unsupported by substantial evidence in a case subject to sections 556 and 557 of this title, or otherwise reviewed on the record of an agency hearing provided by statute. Or F, unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

Gwen: So there's six different grounds there, and we'll be coming back to them. But let's talk about subsection one first — that the court can compel agency action. This one's pretty short. That's how you get to court where the agency won't act. This is stuff like climate inaction cases, or immigration backlogs, people stuck in queues that seemingly go on forever. And it has a hard limit from Norton v. Southern Utah Wilderness Alliance. The action you're compelling has to be discrete and legally required. A court can order a specific required act, but it can't supervise a program.

Marc: Discrete and legally required is carrying an enormous amount of weight.

Gwen: It's easier to see if we talk about a real person. So we have, say, a green card applicant who's waited four years for a decision. Can a court order the agency to decide her case? Possibly, if the statute says the agency shall adjudicate. That's discrete. That's required. And the court can say, rule on this application. What it can't do is the next step. Order the agency to clear the queue. Order the agency to hire more officers. That would be program management.

Marc: So it's a lever, not a steering wheel. One stuck decision at a time.

Gwen: Kind of closer to a car jack. So it has one specific job. It does that job. And definitely that job can be the difference between moving and not moving. But you can't use it to do a lot of other stuff. The jack isn't what allows you to drive the car. So the court can order the agency to act, but it can't order the outcome.

Marc: Okay, which is the same division you keep drawing, showing up in the statute's own structure.

Gwen: So that brings us to the other half. Subsection two — that's the menu of ways an agency can lose. It can lose because the action is arbitrary or capricious. That's the workhorse. This is the State Farm test, and it applies when nothing more specific does. It can lose because the action it took is contrary to a constitutional right. It could lose because it's in excess of statutory authority. This is the post-Loper Bright world. It can lose because it took an action without doing the required procedure. This is if it fails to observe all the requirements from notice-and-comment rulemaking, for instance. It can lose because whatever it did is unwarranted by the facts, or because whatever it did is unsupported by substantial evidence. That's based on an overview of the facts the agency was using to make its decision. Or potentially there could be a de novo trial in the district court, but that's nearly vestigial.

Marc: Okay, so there are six grounds within the APA. And I notice the statute doesn't rank them, doesn't tell you when each one applies, and doesn't say how hard the court is supposed to look.

Gwen: Right. That's the point of going through the text. Congress wrote the grounds, but Congress didn't write the intensity. When we say that agency action can't be arbitrary and capricious — the statute says arbitrary, capricious, or an abuse of discretion, but we generally just say arbitrary and capricious. So Congress wrote those words, but it did it without any instructions attached. It didn't say that the court should take a hard look. It didn't say that there's a requirement that the agency consider significant alternatives. It didn't create a rule that a court judges an agency on the reasons it actually gives. All of that is judicial construction laid on top of the phrase.

Same with substantial evidence. The words are Congress's. The calibration of how much is enough is Universal Camera. Same with questions of law. Subsection C says the court decides whether the agency exceeded its authority, and says nothing about the weight the agency's own reasoning gets. Chevron filled that in. Loper Bright filled it in the other way.

Marc: Which means that about-face happened without a comma of the statute changing.

Gwen: Exactly. Section 706 read the same on the morning Chevron came down and the morning that Loper Bright overruled it. What changed was the intensity setting, and the intensity setting was never in the statute to begin with.

Segment 3 — The gate, and who built it

Gwen: When we're looking at that difference, we're assuming the court has reached the merits. A lot of agency challenges that fail never get to reach these six grounds at all. They die earlier. They die based on standing, finality, ripeness, exhaustion, mootness, the categories of actions that courts have decided they won't review at all. These doctrines don't produce a ruling about whether the agency was arbitrary or exceeded its authority. They produce no ruling on that question at all.

Marc: Which makes the next several episodes the gate rather than the courtroom.

Gwen: It means that the interesting question isn't what standard the court applies. It's who even gets far enough to have a standard applied to them. Right. And so we'll look at standing first. That will be what we're doing in a couple of weeks. And the inherent asymmetry in standing. So a company that EPA regulates has an easy time getting into court. The rule tells it to spend money, and that's a concrete injury nobody argues about. Now, if we take the person downwind of a plant that the EPA has decided not to pursue for violating clean air requirements, she's breathing dirtier air. That's a real injury. And the fact that millions might share it doesn't mean it disappears, because a widely shared harm is still a harm.

Marc: Where does her case then run into trouble?

Gwen: Further along. We have to look at, can she trace her particular injury to this particular non-enforcement, and would a court order actually fix it? Those are the questions that beneficiaries often lose on, and they lose on them often enough that the pattern is pretty clear. It isn't that the doctrine says her injury doesn't count. It's that the same test is much harder to satisfy where she's standing than it is from inside the regulated company.

Marc: And every lawyer knows where that's supposed to come from. Article III gives federal courts the judicial power over cases and controversies. It sounds simple.

Gwen: Right. It does. But what matters is how the court defines it. The injury has to be concrete, particularized, and actual or imminent. It has to be fairly traceable to the defendant. It has to be likely redressed by a favorable decision. Not one of those words appears in the Constitution.

Marc: Which means the requirements that decide whether a person gets into federal court are sitting on top of the text rather than in it.

Gwen: Right. And a lot of them are younger than people might think. Injury in fact as a named test arrived in 1970. The full three-part apparatus consolidated in Lujan is from 1992. Before that, standing was messier, it was more statutory, and it was considerably more open to exactly the kind of plaintiff who now loses. So when a court says a citizen suing over unenforced environmental law lacks a case or controversy, it isn't reading that off the page. It's applying the doctrine the judiciary developed, mostly within living memory, about how much of this work it will take on.

Marc: So the institution that decides how much reviewing it does is the institution being reviewed for how much it reviews.

Gwen: Probably. And the selection effect matters. Standing doesn't filter by whether the agency erred. It filters by what kind of harm you suffered, and by how concentrated it is. Most modern administrative challenges that often reach the front page are brought by regulated parties objecting to a rule. That's what the doctrine selects for.

Marc: Though if it's judge-made, it's also judge-revisable, and it's moved in both directions.

Gwen: It has. So Massachusetts v. EPA in 2007 — the Court said a state gets standing to sue over climate inaction. That's an injury that's about as diffuse as injuries get. The case is hard to square with the current trend line, but it's still on the books.

Marc: And finality, you've already talked about. The agency keeps the decision tentative and the court just never engages.

Gwen: Right. And agencies have gotten very good at that. Guidance documents, frameworks, pilot programs. Much of the modern fight over guidance is about whether an agency can accomplish what a rule accomplishes without throwing the switch and making it reviewable. Then ripeness, exhaustion, mootness. Too early. You didn't finish the agency's process. The case died after you filed.

Marc: And mootness is one people would expect to get gamed. Withdraw the policy, get the case dismissed, reissue it once the attention has moved on. Any organization with a lawyer knows that play.

Gwen: Right. And so there's also a doctrine aimed specifically at that. Voluntary cessation. A defendant doesn't moot a case just by stopping the challenged conduct, and the burden is on the party who stopped it to show the conduct can't reasonably be expected to recur. That's a heavy burden, and it's meant to be a heavy burden.

Marc: So the play doesn't actually work.

Gwen: It doesn't work cleanly. What it can do is cost time, because the agency gets to litigate whether the case is moot. And that litigation happens before anyone looks at the merits, which is the pattern we keep hitting. All of these preliminary doctrines, as the courts are deciding them, they're running the time out and potentially buying time for the agency.

And then we have the categories that courts have placed outside review entirely. So Heckler v. Chaney — the agency's decision not to enforce is presumptively unreviewable. We have statutory preclusion under 701(a)(1), that Congress can say courts don't review this. And the cleanest illustration is Patel v. Garland, from 2022. Patel applied for an adjustment of status. That's a procedure that turns a noncitizen into a lawful permanent resident. But years earlier, he had checked a box on a Georgia driver's license application saying he was a U.S. citizen. He wasn't. He said it was a mistake, and that he never intended to claim citizenship. But the immigration judge denied his application on the strength of that false claim.

In 8 U.S.C. 1252, Congress stripped federal jurisdiction over certain discretionary determinations in immigration cases. The question was, what counts as a discretionary determination? Is it just the final ruling, or is it everything that was going into that determination? Like, can you challenge what they were looking at to make that determination? The Court said that it reaches those factual findings underneath the determination. The issue wasn't whether Mr. Patel had made a knowingly false statement. It was whether this was the kind of determination that courts could see.

Marc: Right. So everybody agreed that generally the final decision would be non-reviewable. But the question is, okay, but what if they're basing that final decision on wrong facts? Can we go in and challenge those facts?

Gwen: And the Court said, nope. The facts are part of that overall review. You don't have the discretion to review the final decision, and you don't have the discretion to review what the final decision was based on. And so Congress just simply shut the door to that kind of review.

Marc: Right. And they didn't have to. The Due Process Clause says he gets process. The jurisdiction-stripping statute says the federal court can't examine the determination. Both are operating at once. And what comes out looks like a closed system.

Gwen: Right. So if we stack all this up, a lot of challenges never clear standing. Of those that do, many can die on finality. Some are too early or too late. Some hit a category that's off limits. Only what survives all of that reaches those grounds we're looking at in 706, where most of the time the standards are deferential and often the agency wins.

Marc: So the robust judicial check people imagine exists for a thin slice of everything agencies do.

Gwen: Right. A thin slice, and not a randomly chosen one. How the slice gets cut is the next few episodes.

Segment 4 — Reluctance, and where we disagree

Gwen: The standard account of how this came to be is institutional reluctance — that courts didn't ask for this job. Before the APA, review of agency action was patchy. Some statutes provided for it, some didn't. Doctrines varied agency by agency. The APA was intended to standardize that, and it handed the federal courts a workload they'd never carried. So over the following decades, they started building doctrines limiting when they had to engage.

Marc: Okay, but there's also a much less dramatic explanation for everything we've described so far, which is that judges are just doing ordinary legal work. Article III does say cases and controversies. Somebody has to decide what that means, and that somebody is a judge. The APA does say final agency action, and those words have to be construed before anyone can apply them. That's not the judiciary quietly engineering its own docket. That's the judiciary doing the things we've assigned to it.

Gwen: It is. I'm not trying to say that judges made these doctrines up out of nothing, or that there's a design behind them to try and limit court action explicitly. Someone has to say what final agency action is. It's not a scandal. That's their job. But the point is to understand that the court is not necessarily applying just straightforward language from Congress. How wide standing runs, how final is final, whether a real defect gets excused, whether winning gets you a remedy — every one of those questions is answered by the same institution. And that answer decides cases. The words they're using for it don't.

Marc: Then there's the harder test for it. If the story is courts building their own way out of engagement, some recent cases just don't fit that story. Sackett, for example — the Court pushes back on the EPA's framing and lets the landowners in. In Lucia, the Court invalidates a proceeding over how an administrative judge was appointed. And in Jarkesy, the Court takes in-house SEC fraud trials off the board entirely. So those courts are opening things up, sometimes dramatically, and that isn't closing a door.

Gwen: Right. If it only ran in one direction, it would be a simpler story. Those cases show that choices are being made both ways. More review here, less there. And the work of this season is figuring out what makes it come out one way rather than the other.

Marc: There's a pattern in your examples, though. Look at what each of those cases was asking. Whether EPA had drawn its own jurisdiction correctly. Whether the person deciding was lawfully in the job. Whether the case belonged in an agency at all. Then compare that to a citizen who thinks EPA should be enforcing harder. The first three are about the boundaries of someone's authority. And the last one is about whether the agency is doing a good job enforcing its own rules.

Gwen: Yes, that's the thread. The other half of the reluctance story is that reluctance has politics attached. Standing narrowed over roughly the same forty years that the administrative state grew. And the scholarship on that period argues that this timing wasn't accidental. But reluctance was never one thing. There's reluctance to second-guess what an agency decided, and there's a reluctance to let people into court to ask about it. And those can move separately. So right now, the first one is gone and the second one isn't. Courts are more willing to override an agency's judgment than at any point I can think of. They're not correspondingly more willing to hear from the people the agency's actions affect. A generation ago, you'd have described the Court as deferential on the merits and stingy at the door. It's no longer deferential on the merits.

Marc: So the door didn't open when the merits did.

Gwen: Right. And that's one big thing to watch this season.

Marc: So standing doctrine in 1973 and standing doctrine in 2024 — they're the same words, but they're much different law. And it's gotten sharper lately. Loper Bright took a deference doctrine that had been on the books since 1984 and ended it. And let's not forget what's happening with the White House ballroom. The Court essentially greenlit the ability of the president to go forward.

Gwen: Right. So the Court here is saying you can't challenge this action that we all agree was probably unlawful. And that's a pretty hard thing. What we'll see is some action can still be illegal and be unchallengeable. And what's really hard is when everybody notices, because these are events that we are living through right now. The opinion and the dissents and the headlines, and forty years of doctrine that get overruled right in the face of the media — whereas a lot of the other stuff does comparable work without all of the flash and all of the fanfare.

Marc: So the ballroom is, in a way, more representative of what a lot of this season's cases are going to be. Someone being shown the door before they ever have a chance to ask the question they came to ask.

Gwen: Loper Bright, in contrast, was a case where, like I said at the very beginning, the court actually answered the question. And that was obviously a really big case, but you can't reason from that to say that is what the courts are generally doing. If a court rules against an agency, the thing that story is telling you is which party won. But it's not telling you what stage it was at, or what the court was actually deciding.

Marc: And those come apart constantly. A plaintiff can win and have won nothing about the agency at all. The court could just say that she has standing, and then send it back to get to the next stage of the litigation.

Gwen: Right. And had the court allowed the ballroom case to proceed, that's where we'd be. So the questions worth asking are, what stage is this happening at? Who was making the call? And what did they decide? Because it might have been on the merits, but it could have also been at the door.

Marc: And the headlines you read, they're not going to tell you that either way.

Gwen: They generally don't. So that's the work of this season.

Closing

Gwen: Next week, we'll be doing the episode I promised in the very beginning, talking about executive orders and why the choice between issuing one versus routing a policy through an agency determines which body of law tests it. We'll be doing that through the birthright citizenship case, and the question of when a court should reach a constitutional problem instead of a smaller one.

Marc: And then the doctrine proper.

Gwen: Right. And we'll be starting that with standing. And then, like I said, another one talking about standing right now.

Marc: That's it for this episode of Administrative Remedies. If you have questions or topics you'd like us to cover, reach out to us at the University of Tulsa College of Law. And remember, you can't fix what you don't understand. I'm Marc Roark. See you next time.

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Administrative Remedies is produced by Professor Gwendolyn Savitz and Professor Marc Roark at the University of Tulsa College of Law.