Judicial review of informal actions
🧠 First, What Are "Informal Actions"?
Not all agency decisions go through formal rulemaking or adjudication. Many decisions are “informal actions,” which include:
Guidance documents
Policy statements
Interpretive rules
Enforcement decisions
Letters, memos, or press releases with practical impact
These are not made through formal hearings or notice-and-comment, but they often affect regulated parties just as strongly.
⚖️ Can Courts Review Informal Actions?
Yes — but the scope and standard of review vary.
The Administrative Procedure Act (APA) allows judicial review of final agency action, even if informal, unless:
It’s committed to agency discretion by law (APA §701(a)(2))
It’s not a final action (APA §704)
🧾 Judicial Review of Informal Actions: Key Legal Standards
Arbitrary and Capricious Test (APA §706(2)(A))
→ Did the agency act rationally, reasonably, and with a clear explanation?
Finality Doctrine
→ Is the action final and has legal consequences?
Ripeness & Standing
→ Is the issue ready for review, and does the challenger have legal interest?
⚖️ Landmark Cases – Judicial Review of Informal Actions
Below are six important cases with detailed context, court rulings, and significance.
1. Citizens to Preserve Overton Park v. Volpe (1971)
🔹 Agency Action: Informal approval by the Secretary of Transportation to build a highway through a public park.
🔹 Issue: Can courts review informal agency decisions without a formal record?
🔹 Ruling:
Yes, informal actions are reviewable under APA.
The Court applied the “arbitrary and capricious” standard.
Courts can demand explanation even if there's no formal hearing.
🔹 Significance:
Set the modern standard for reviewing informal agency decisions.
Courts can require agencies to justify their decisions with a clear rationale.
2. SEC v. Chenery Corp. (1947)
🔹 Agency Action: SEC made a policy decision in an adjudication without prior rule or notice.
🔹 Issue: Can courts affirm an informal agency action based on new justifications offered after litigation starts?
🔹 Ruling:
No. The agency’s decision must stand or fall on the reasons it originally gave.
Courts cannot invent post hoc rationalizations to save an agency’s action.
🔹 Significance:
Reinforces the importance of agencies explaining themselves up front.
Applies to informal policy and adjudication alike.
3. Bennett v. Spear (1997)
🔹 Agency Action: Informal biological opinion under the Endangered Species Act (ESA) that had major effects on water resource management.
🔹 Issue: Is this type of informal opinion “final agency action” reviewable under APA?
🔹 Ruling:
Yes, it determined rights and obligations, so it was final.
The court clarified the “final agency action” test:
It marks the consummation of the agency’s decision-making.
It has legal consequences.
🔹 Significance:
Shows that even informal agency communications can be reviewable if they have real-world legal impact.
4. Appalachian Power Co. v. EPA (2000)
🔹 Agency Action: An EPA guidance document interpreting air pollution standards.
🔹 Issue: Is non-binding guidance actually binding — and thus reviewable?
🔹 Ruling:
The D.C. Circuit said the guidance had binding effect in practice.
Although called “non-binding,” it created real compliance expectations.
Thus, it was reviewable as final agency action.
🔹 Significance:
Warns agencies that labels don’t control — function does.
Agencies can't evade judicial review by issuing rules disguised as guidance.
5. Center for Auto Safety v. NHTSA (2017)
🔹 Agency Action: Informal decision not to act on a petition for rulemaking about auto safety.
🔹 Issue: Can a court review an agency’s refusal to act?
🔹 Ruling:
Yes, but the standard is very deferential.
A refusal to act is presumed unreviewable, but if the refusal is based on impermissible reasons or is irrational, it can be overturned.
🔹 Significance:
Shows limits of judicial review — not all inaction is immune, but it’s hard to challenge.
6. Texas v. United States (2021) — DACA enforcement policy
🔹 Agency Action: DHS informal memo creating the Deferred Action for Childhood Arrivals (DACA) program.
🔹 Issue: Is a memo with major policy implications a reviewable action?
🔹 Ruling:
Multiple courts (incl. the Supreme Court in DHS v. Regents, 2020) held that such informal memoranda are reviewable, because:
They bind agency staff
They have legal consequences
They are not merely internal guidance
🔹 Significance:
Blurred the line between informal policy and rulemaking.
Reinforced that big informal policy moves are judicially reviewable.
🧠 Quick Review — How Do Courts Decide If Informal Action is Reviewable?
Use this 3-question test:
Is it final?
→ Did the agency finish its decision-making process?
Does it bind anyone or have legal consequences?
→ Are people expected to comply?
Is it arbitrary or capricious?
→ Did the agency explain itself rationally?
If YES to all → Judicial review is likely allowed.
📊 Summary Table
| Case | Informal Action | Ruling | Key Lesson |
|---|---|---|---|
| Overton Park (1971) | Approval for highway | Reviewable | Courts must check for rational basis |
| Chenery (1947) | Ad hoc policy in adjudication | Reviewable | Agency can’t change reasons later |
| Bennett v. Spear (1997) | Biological opinion | Final + reviewable | Legal impact = reviewable |
| Appalachian Power (2000) | Guidance memo | Reviewable | Labels don’t matter — effects do |
| Center for Auto Safety (2017) | Petition denial | Limited review | Refusal to act is sometimes reviewable |
| DACA Cases (2020–21) | Enforcement memo | Reviewable | Major informal policies can be challenged |
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