Louisiana v. United States Army Corps of Eng'rs

In Louisiana v. United States Army Corps of Eng'rs, the U.S. Court of Appeals for the Fifth Circuit, in a unanimous decision written by Judge Edith Jones, dismissed a claim against a federal agency for lack of finality:

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First, even more so than the 2008 Report, the transmission of the 2012 Supplemental Report does not mark the consummation of the Corps' decision-making regarding the financing of the ecosystem restoration project. This action is both tentative and interlocutory, Bennett, 520 U.S. at 178, 117 S. Ct. at 1168, as it necessarily contemplates future agency action. The Assistant Secretary approved only part of the ecosystem restoration plan—$1.3 billion of the $2.9 billion projected cost—as cost effective; the Assistant Secretary "defer[red] . . . a determination" on the remaining $1.6 billion. As to the approved portion, the Assistant Secretary cautioned that implementation could not proceed under the plan submitted to Congress until a non-federal sponsor agrees to bear 35 percent of the costs. Without a non-federal sponsor, to arrive at a cost effective plan the Corps may need to alter the current cost allocation. That the agency may need to re-work its cost allocation does not appear to be a "mere possibility," Sackett, 132 S. Ct. at 1372, because Louisiana has refused to be the non-federal sponsor under the Corps' 65-35 allocation, and the ecosystem restoration plan has yet to be implemented. Further, the Secretary's transmission of the 2012 Supplemental Report does not "determine rights or obligations" or create "legal consequences." Like the 2008 Deauthorization Report, the 2012 Report does not regulate Louisiana and cannot bind the State to pay for 35 percent of the ecosystem restoration project. Nor does this report inflict legal consequences on Louisiana for the State's non-acquiescence, such as exposure to civil or criminal liability for failure to comply. Cf. Hawkes Co., 136 S. Ct. at 1814; Bennett, 520 U.S. at 170, 178, 117 S. Ct. at 1168-69; Texas v. EEOC, 2016 U.S. App. LEXIS 11735, 2016 WL 3524242, at *8. Because the Assistant Secretary's transmission of the 2012 Supplemental Report was not a final agency action, we lack jurisdiction to consider Louisiana's APA challenge to the cost-share allocation set out in that Report. We must vacate the district court's judgment to the extent it opined on the cost-sharing proposal set forth in the 2012 Supplemental Report.

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Louisiana v. United States Army Corps of Eng'rs, 834 F.3d 574, 584 (5th Cir. 2016)

Holding

The Court held in favor of the federal agency on substantive grounds as to one part of its decision, but "we dismiss for lack of jurisdiction Louisiana's challenge to the proposed, but not final, agency action for cost allocation concerning the MR-GO ecosystem restoration." Louisiana v. United States Army Corps of Eng'rs, 834 F.3d 574, 588 (5th Cir. 2016).

Relied Upon

This precedent is favorably cited by multiple subsequent rulings. A three-judge panel of conservative judges on the Fifth Circuit found jurisdiction to exist by relying upon this decision as follows:

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Start with finality. The Administrative Procedure Act ("APA") provides judicial review of "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. Our circuit considers finality "a jurisdictional prerequisite of judicial review." Louisiana v. U.S. Army Corps of Eng'rs, 834 F.3d 574, 584 (5th Cir. 2016). There are two requirements: (A) "the action must mark the consummation of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature." U.S. Army Corps of Eng'rs v. Hawkes Co., 578 U.S. 590, 597, 136 S. Ct. 1807, 195 L. Ed. 2d 77 (2016) (quotation omitted). And (B) "the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Ibid. (quotation omitted). This is generally a "pragmatic" inquiry. Id. at 599 (quotation omitted); but see Biden v. Texas, 142 S. Ct. 2528, 2559 n.7, 213 L. Ed. 2d 956 (2022) (Alito, J., dissenting) (explaining that the Court sometimes uses an "expansive, formalist approach to the second Bennett factor . . . at odds with the usual pragmatic approach" (quotation omitted)). We consider each requirement in turn and find both satisfied.

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Data Mktg. P'ship, LP v. United States DOL, 45 F.4th 846, 853 (5th Cir. 2022) (Oldham, J., with Smith and Elrod, JJ., fully concurring).