Substituting Substantive for Procedural Review of Guidance Documents

This article proposes that courts substitute immediate substantive review for procedural review of agency guidance documents. The article begins by reviewing the extensive literature about how courts should treat non-legislative rules. Because such rules play an important role in assuring coherence and accountability of agency policies and interpretations and in communicating the views of agencies about such matters the article agrees with those who advocate ex-post monitoring of agency use of rules issued without notice and comment procedures. Recognizing that ex-post monitoring leaves much leeway for agencies to abuse guidance documents by depriving stakeholders of opportunities to participate in their development and of obtaining substantive judicial review of them, the article advocates that non-legislative rules generally should be subject to arbitrary and capricious review when issued. The article proceeds to explain why other proposals to rein in agency discretion to use guidance documents – in particular making the agency explain its decision to proceed by this mode and forcing the agency to consider timely petitions for reconsideration of such documents – are likely to have less effect with greater cost than its proposal for direct review of guidance documents. In advocating for such review, however, the article contends that courts will need to massage doctrines governing availability of review, such as those governing finality and ripeness of guidance documents. Even more significantly, the article argues that review for reasoned decision-making will have to be modified to avoid seriously compromising the speed and procedural flexibility which makes guidance documents an attractive means for agencies to communicate their views of policy and interpretation. It therefore develops a variant on arbitrary and capricious review that would require agencies to explain issuance of guidance in terms of factors that are relevant and alternatives that are plausible given the state of knowledge available to the agency when it acted. The article concludes that such a doctrine can encourage agencies to solicit input even from stakeholders outside the issue networks affected by the guidance document, while preserving sufficient flexibility for the agency to issue the document quickly and without undue procedural burden.