Notice & Comment

Murphy on Funk on Final Agency Action (AdLaw Bridge Series)

jotwellOver at Jotwell, Chip Murphy reviews Bill Funk‘s short essay Final Agency Action after Hawkes, which is forthcoming in the New York University Journal of Law and Liberty. Here’s a summary of Funk’s essay from the SSRN abstract:

On May 31, 2016, the Supreme Court decided United States Army Corps of Engineers v. Hawkes Co. (Hawkes), holding that Jurisdictional Determinations (JDs) made by the Corps are final agency actions subject to judicial review under the Administrative Procedure Act. Following the Court’s decision in Sackett v. EPA (Sackett) in 2012, also involving a dispute as to whether certain lands were wetlands subject to Clean Water Act jurisdiction, this outcome was not surprising, but the Court’s opinion and the accompanying concurring opinions still leave much open to question regarding how the term “final agency action” in the APA is to be interpreted. This article will discuss first what the Court has decided and what it has suggested, and then it will discuss the questions left open and suggest how they might be answered.

And here’s a taste from Murphy’s review:

Professor Funk’s essay traces the case law roots of these competing formalist and pragmatic approaches to finality. Spoiler alert: It turns out that Bennett’s formalist roots do not run deep. Professor Funk observes, among other interesting points, that Bennett’s rewrite of finality doctrine never bothered to cite Abbott Labs, which had been the leading case on the subject for thirty years, or even to “indicate[] any awareness that it was stating the question differently” than Abbott Labs had. It is also interesting to learn that “none of the authority cited by Bennett for its test for finality involved suits under the APA.” If Justice Ginsburg ever wants to aim serious fire at Bennett, Professor Funk has supplied doctrinal ammo.

Definitely go read the full review as well as the current draft of the essay.


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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