explaining that an agency action is final and reviewable under the APA if the action is not "of a merely tentative or inter locutory nature” and ‘‘one by which rights or obligations have been determined or from which legal consequences flow” (internal quotations and citation omitted)
How later courts described this case
- explaining that an agency action is final and reviewable under the APA if the action is not "of a merely tentative or inter locutory nature” and ‘‘one by which rights or obligations have been determined or from which legal consequences flow” (internal quotations and citation omitted)
- concluding that a “generic letter” from the National Highway Safety Administration was non-final where it suggested that “in general” certain limitations to automobile recalls might be permissible but remained “conditional” and “only general in its prescriptions”
- concluding that guidelines issued by the National Highway Traffic Safety Administration which interpreted the scope of an agency regulation were not final agency action, and therefore not reviewable under the APA
- explaining that agency could not have adopted 23 policy guidance if agency employee who stated such guidance did not have power to make guidance on behalf of agency
Written by the judges who cited it.
The opinion
RANDOLPH, Circuit Judge,
concurring.
In this case concerning the National Highway Traffic Safety Administration’s “policy guidelines” for regional recalls, my colleagues and I reach the same destination by different paths. In my view, the “policy guidelines” at issue here do not constitute “final agency action,” 5 U.S.C. § 704 , because they do not impose any “legal consequences” on the regulated automakers. Bennett v. Spear, 520 U.S. 154, 178 , 117 S.Ct. 1154 , 137 L.Ed.2d 281 (1997).
*436 Agency action is not final when it “does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action.” DRG Funding Corp. v. Sec’y of Housing & Urban Dev., 76 F.3d 1212, 1215 (D.C.Cir.1996) (quoting Rochester Tel. Corp. v. United States, 307 U.S. 125, 130 , 59 S.Ct. 754 , 83 L.Ed. 1147 (1939)); see also Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 731-33 (D.C.Cir.2003); AT & T Co. v. EEOC, 270 F.3d 973, 975-76 (D.C.Cir.2001). The letters of the Associate Administrator of the National Highway Traffic Safety Administration address the situation in which an auto manufacturer voluntarily proposes to recall its vehicles. See 49 U.S.C. § 30118 (c). In this posture, the Administration, “[o]n the motion of the Secretary or on petition of any interested person ... may conduct a hearing to decide whether the manufacturer has reasonably met the notification requirements under this section.” Id. § 30118(e). To take an example, the Associate Administrator’s letter to Ford, J.A. 142-46, requests voluntary compliance with the “general policy with respect to regional recalls,” id. at 142, and merely threatens further administrative action. The Associate Administrator notes that if Ford chooses not to take the suggested actions, “the agency may commence a proceeding under 49 U.S.C. § [ ] 30118(e) .... ” Id. at 146 (emphasis added). If the threat were carried out, Ford and any interested person — including, presumably, the appellants — could present arguments at the hearing. The Administration would then make a final decision whether the manufacturer is in compliance with the statute. If not, the Administration could order the manufacturer to take specific action. 49 C.F.R. § 557.8 (1998). This order, however, would not be self-executing. The Attorney General would have to file a civil action seeking enforcement. 49 U.S.C. §§ 30121 , 30163. This case is closely analogous to Reliable Automatic Sprinkler Co., in which we found that the Consumer Product Safety Commission’s attempt to induce voluntary action by threatening to initiate administrative proceedings that could possibly lead to sanctions was not reviewable. 324 F.3d at 731-32 . “To be sure, there may be practical consequences” from Ford’s (or any other manufacturer’s) decision not to comply with the Associate Administrator’s letter, “[b]ut the request for voluntary compliance clearly has no legally binding effect.” Id. at 732 . The course of action that the auto makers choose is subject to administrative challenge both by NHTSA and by interested persons like appellants. Neither the letters threatening action nor the “guidelines” — merely a generic version of those letters — dictate the outcome of such challenges.
It may be that the Associate Administrator had authority “to issue[ ] policy guidance relating to NHTSA’s enforcement program for vehicle safety,” Initial Supp. Br. for Appellee at 1. But that authority tells us nothing about whether the guidance he issued is sufficiently final to support judicial review. It is not. The Associate Administrator’s role is largely prosecutorial and the substantive policy described in the letters has not been adopted as agency policy. Although the Associate Administrator may initiate and conduct a hearing, 49 C.F.R. § 501.8 (g)(1) (1998); see also Initial Supp. Br. for Appellee at 3, the Administrator has reserved the authority to “[m]ake final decisions concerning alleged safety-related defects.” Id. § 501.7(a)(2) (1998). It is the Administrator, not the Associate Administrator, who has final say over the defect policy, and his decision is rendered only after an administrative hearing. The guidelines do not, therefore, represent the “consummation of the agency’s decisionmaking pro *437 cess.” Bennett, 520 U.S. at 178 , 117 S.Ct. 1154 (internal quotation marks omitted).
The National Traffic and Motor Vehicle Safety Act does not contain a specific provision authorizing judicial review. We are therefore confined to reviewing “final agency action[s].” 5 U.S.C. § 704 . Because the action here is not final, it is not renewable. See Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8 , 13 n. 5 (D.C.Cir.2005).