Today’s Ad Law Reading Room entry is “Rethinking the Administrative-Remand Rule,” by Matthew J. Sanders, which is forthcoming in the Stanford Law Review. Here is the abstract:

With a few exceptions, the federal courts of appeals have jurisdiction over—and only over—“final decisions” of the district courts. There is a little-known but highly consequential rule, known as the “administrative-remand rule,” that an order remanding an administrative agency’s decision under the federal Administrative Procedure Act is final only as to the agency. That is, only the agency may appeal a remand, and if the agency does not appeal, neither the plaintiff nor any intervenor may do so.

The administrative-remand rule thus acts as an appellate gatekeeper in almost all cases involving remands to federal agencies. It accordingly shapes much of the administrative law coming out of the federal courts of appeals. The rule also reveals much about how the courts of appeals conceive of finality and deference to agency decision-making. Despite all this, the academic literature discusses the administrative-remand rule only generally, and only in the context of larger concerns about finality and federal jurisdiction. And academics and practitioners alike must ask themselves whether the rule, as it currently exists, makes sense. A deeper dive is in order.

This article describes the administrative-remand rule’s origins, formulations, and purposes. The article explains that the rule emerged in the 1970s and 1980s to promote judicial economy by avoiding piecemeal appeals, even at the cost of injustice in particular cases. Today, the rule still largely serves that wise purpose, but it is not without problems. All the federal circuits have adopted the rule, but very different versions of it. A non-agency party’s ability to appeal a remand varies significantly from circuit to circuit and, in some cases, even with the same circuit. The rule is problematic in certain categories of cases, most notably where a remand is likely to be meaningless or where it facilitates ongoing harm to parties or resources. And the rule underscores larger concerns in the fields of federal jurisdiction and administrative law, including forum-shopping, temporal forum-shopping, politicized agency decision-making, inconsistent judicial review, and reduced access to the courts.

This article argues for modest adjustments that would make the administrative-remand rule more consistent across the circuits, better balance judicial efficiency and justice, and promote better agency decision-making.

If one was to conjure examples of escapist literature, an article on the appealability of administrative remands probably wouldn’t be the first thing to come to mind. But for an administrative law nerd, this piece proves a perfect respite from the current storm. It’s a classic kind of article: a deep dive into a little-studied doctrine that moves from elucidation to critique to proposal. The writing is lively, and Sanders creatively weaves in his own encounter with the administrative-remand rule, as a litigator with the Department of Justice, in a refreshing and never ham-handed way. “Rethinking the Administrative-Remand Rule” is not timely in the sense of being tied to current events, but its treatment of an enduring and important issue in administrative litigation is worth attention.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.