The New Frontier of Guidance Reviewability

Authors

Tomás Rios, University of Michigan Law SchoolFollow

Abstract

In the administrative context, agency actions must be “final” to trigger judicial review. The Supreme Court’s opinions in Sackett v. Environmental Protection Agency and U.S. Army Corps of Engineers v. Hawkes Co. marked an important shift in finality doctrine by emphasizing that the calculus of whether agency guidance is “final” may turn on its practical effects. For decades, agency guidance rarely warranted judicial review because it is not legally binding and, thus, not final. But the advent of the Sackett-Hawkes pragmatic analysis has changed the landscape, raising particular concerns for agencies relying on promulgating guidance documents to “softly” regulate. This presents a puzzle: guidance varies in form and purpose, so what guidance is final? This Note makes two contributions. First, it offers a taxonomy of how circuit courts have developed the Sackett-Hawkesfinality test into different doctrinal strands. Second, it evaluates a recent case in the Fifth Circuit, Clarke v. CFTC, to explain why no-action letters should remain insulated from judicial review. Unlike other guidance documents, no-action letters are “committed to agency discretion” because they are a species of prosecutorial discretion. Conflating the reviewability of no-action letters with general guidance risks doctrinal, constitutional, and policy consequences.

Recommended Citation

Tomás Rios, The New Frontier of Guidance Reviewability, 123 Mich. L. Rev. 563 (2025).
Available at: https://repository.law.umich.edu/mlr/vol123/iss3/5