The Agency Declaratory Judgment
48 Pages Posted: 20 Apr 2017 Last revised: 31 Jan 2018
Date Written: April 19, 2017
Abstract
This Article identifies and examines an overlooked provision of the Administrative Procedure Act (APA) that extends to administrative agencies a device analogous to the declaratory judgment. This device—the declaratory order—enables agencies to provide case-specific, noncoercive, legally binding advice to regulated entities and the public, thereby reducing regulatory uncertainty and its attendant harms. Recent changes in how the courts interpret the Administrative Procedure Act have made the declaratory order more useful and accessible to agencies, while simultaneously reducing the attractiveness of other forms of nonbinding agency guidance. This Article fits the declaratory order among the various policymaking forms available to agencies and comprehensively analyzes current, limited agency use of the device. It argues that agencies should accept the courts’ invitation to use declaratory orders more frequently and creatively to improve the administration of federal regulatory programs.
Keywords: administrative law, adjudication, Administrative Procedure Act, declaratory orders, choice of policymaking form, procedural discretion, declaratory judgments, guidance
JEL Classification: K20, K23
Suggested Citation: Suggested Citation