It’s common for the D.C. Circuit to say that the finality of agency action is not jurisdictional. For example, it did so just last month—and cited a decision from 2020:
The district court … treated both the November 2016 letter to Farrell and the February 2017 letter to Farrell as constituting final agency action. See Farrell v. Tillerson, 315 F. Supp. 3d 47, 59-64 (D.D.C. 2018). The parties do not challenge that holding here, and finality is not a jurisdictional matter under the APA that we must decide sua sponte. See Zhang v. U.S. Citizenship & Immigr. Servs., 978 F.3d 1314, 1322-23 (D.C. Cir. 2020). Therefore, both letters are properly before us.
No. 19-5357, Farrell v. Blinken (July 13, 2021).
“After a period of uncertainty in our circuit,” the court has said, “it is ‘now firmly established’ that finality under the APA is non-jurisdictional.” Flytenow, Inc. v. FAA, 808 F.3d 882, 888 (D.C. Cir. 2015) (quoting Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 661 (D.C. Cir. 2010)).
But is it firmly established? If so, what to make of this decision last week:
[W]e consider as a threshold matter whether the dispute is ripe for our review, and, relatedly, whether TTB’s [Alcohol and Tobacco Tax and Trade Bureau] ruling letter constituted final agency action. Under the Administrative Procedure Act (APA), an agency’s challenged decision is subject to judicial review if it constitutes final agency action. 5 U.S.C. § 704. While TTB has not argued that its ruling letter fails to qualify as final agency action, satisfaction of that requirement is a prerequisite to ripeness in an APA case: “a dispute is not ripe if it is not fit, and (at least in an APA case) it is not fit if it does not involve final agency action.” Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940, 943 n.4 (D.C. Cir. 2012). We take up the question of ripeness on our “own motion,” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003), which, in the context of this case, necessarily requires us to examine whether the ruling letter amounted to final agency action.
No. 19-5252, Bellion Spirits, LLC v. United States (Aug. 6, 2021).
As the highlighted text shows, the court treated the finality of agency action as a “prerequisite to ripeness in an APA case,” and raised it on its “own motion.” That makes sense if ripeness goes to justiciability—and thus a court’s ability to hear a case at all. E.g., Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732 (1998) (“We find that the dispute is not justiciable, because it is not ripe for court review.”).
But how then, in the other recent cases, could the court simply assume an agency’s action was final, because finality is not jurisdictional? If indeed finality is a “prerequisite to ripeness,” one would think it too must be jurisdictional. Is the court implicitly treating some agency finality issues as jurisdictional and others as prudential?
If you know the answer to this riddle, let us know.