Declaratory Orders
Final Report to the
Administrative Conference of the United States
Emily S. Bremer
University of Wyoming College of Law
October 30, 2015

This report was prepared for the consideration of the Administrative Conference of the
United States. The opinions, views, and recommendations expressed are those of the
author and do not necessarily reflect those of the members of the Conference or its
committees, except where formal recommendations of the Conference are cited.

Bremer—Declaratory Orders

30-Oct-15

Emily S. Bremer
University of Wyoming College of Law*
TABLE OF CONTENTS
Introduction .................................................................................................................................. 1
I. The Fundamentals of Administrative Declaratory Orders ............................................ 4
A.
What is a Declaratory Order? ...................................................................................... 4
B.
Formal vs. Informal Adjudication ............................................................................ 11
C.
History of Agency Use of Declaratory Orders ........................................................ 14
II. Judicial Review and Related Legal Considerations ...................................................... 18
A.
Direct Review and Collateral Challenge .................................................................. 18
B.
Barriers to Judicial Review of Declaratory Orders ................................................. 20
C.
Standards of Review ................................................................................................... 24
III. Agency Use of Declaratory Orders.................................................................................. 26
A.
Defining the Scope of Declaratory Practice ............................................................. 27
B.
Agency Decisions Analogous to Declaratory Orders ............................................ 32
C.
Should Agencies Expand the Use of Declaratory Orders? .................................... 35
IV. Agency Procedures in Declaratory Proceedings ........................................................... 36
A.
Determining Minimum Procedural Requirements ................................................ 36
B.
Initiating the Proceeding ............................................................................................ 38
C.
Giving Notice and Collecting Information .............................................................. 41
D.
Deciding and Processing Administrative Appeals ................................................ 44
V. Conclusion .......................................................................................................................... 45
INTRODUCTION
Providing clarity and certainty is an enduring challenge of administrative
governance, particularly in the regulatory context. Faced with uncertainty about how an
agency will regulate a project or transaction, businesses and individuals may be unable
or unwilling to act. The consequences for the economy, society, and technological
progress can be significant and harmful. The predominant way that agencies address
this problem is by providing guidance to regulated parties. This guidance takes a variety
of forms. It may be oral or written. It may come from agency enforcement personnel,
general counsel offices, or other staff or offices that interact on a regular basis with
members of the regulated industry. There are innumerable forms of written guidance,
including interpretative rules, policy statements, rulemaking preambles, memoranda,
pamphlets, and letters.1 Although these many forms of agency guidance do much to
* Assistant Professor of Law, University of Wyoming College of Law.

The views expressed here are the
author’s alone and do not necessarily represent the views of the Administrative Conference of the United
States or its members.
1 The Administrative Conference has adopted a number of recommendations on agency guidance. See
Admin. Conf. of the U.S., Recommendation 2014-3, Guidance in the Rulemaking Process, 79 Fed. Reg. 35,988,

1

Bremer—Declaratory Orders

30-Oct-15

dispel regulatory uncertainty, they cannot eliminate it entirely. This is because they are
generally informal and not legally binding on the agency that issues them. Regulated
parties may usually be able to rely upon them, but when an agency changes its position
after a transaction is completed, the consequences for the affected party can be severe.
As the potential costs of misplaced reliance rise, even a small chance that an agency will
not adhere to a position offered in guidance can become intolerable.
When it enacted the Administrative Procedure Act (APA) in 1946, Congress
included a provision designed to address this difficult problem. In Section 5(d), codified
at 5 U.S.C. § 554(e), it provided that an “agency, with like effect as in the case of other
orders, and in its sound discretion, may issue a declaratory order to terminate a
controversy or remove uncertainty.”2 The declaratory order is a creature of adjudication
that serves an important advice-giving function. It may be issued in response to a petition
filed with the agency or on the agency’s own motion. It is well tailored to provide just
the level of certainty required to overcome the deficiency of more informal kinds of
guidance. This is because it is non-coercive and yet legally binds the agency and the
named party, but only on the facts assumed in the order, and the agency remains free to
change its position with adequate explanation in a subsequent proceeding.3 The
declaratory order is a device that affords substantial administrative discretion—the
agency may decline a request to institute a declaratory proceeding or issue a particular
declaratory order. An agency’s decision, be it a denial of a petition or the issuance of a
declaratory order, is judicially reviewable. But the scope of review is limited, and the
position an agency takes in a declaratory order is typically afforded deference, both on
judicial review and when relevant to matters at issue in subsequent or parallel litigation.
Despite the apparent usefulness of the declaratory order as a tool of administrative
governance, agencies have demonstrated a persistent reluctance to use it. A variety of
explanations have been offered to explain this reluctance, but two bear special mention.
First, for many decades, the prevailing view was that the placement of the APA’s
declaratory orders provision within Section 5, governing formal adjudication, limited the

35,992 (June 25, 2014); Admin. Conf. of the U.S., Recommendation 92-2, Agency Policy Statements, 57 Fed.
Reg. 30,103 (July 8, 1992); Admin. Conf. of the U.S., Recommendation 76-5, Interpretive Rules of General
Applicability and Statements of General Policy, 41 Fed. Reg. 56, 769 (Dec. 30, 1976); Admin. Conf. of the U.S.,
Recommendation 75-9, Internal Revenue Service Procedures: Taxpayer Services and Complaints, 41 Fed. Reg.
3986 ¶ c (Jan. 27, 1976); Admin. Conf. of the U.S., Recommendation 71-3, Articulation of Agency Policies, 38
Fed. Reg. 19,788 (July 23, 1973).
2 5 U.S.C. § 554(e); see generally ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES, FINAL REPORT OF
THE ATTORNEY GENERAL’S COMMITTEE ON ADMINISTRATIVE PROCEDURE, S. DOC. NO. 77-8, at 30-34 (1941)
[hereinafter AG’S REPORT] (urging Congress to include the declaratory orders provision in the APA).
3 Courts have occasionally misapprehended the nature of the declaratory order and characterized it as a
form of informal guidance. See, e.g., Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 391-92 (5th Cir. 2014)
(stating, without any citation to or acknowledgement of 5 U.S.C. § 554(e), that “[w]hile this FERC-issued
document is rather impressively called a Declaratory Order, it is actually akin to an informal guidance
letter”).

2

Bremer—Declaratory Orders

30-Oct-15

device to that context. Under this view, an agency could not issue a declaratory order
through informal adjudication or use such an order to address a matter not subject by
statute to adjudication under the APA. This considerably limited the availability of the
device. Second, agencies have expressed a strong disinclination to legally bind
themselves, preferring to offer advice through informal, non-binding guidance that was
generally immune from judicial review. Over the years, scholars and other experts
offered solutions to these and other sources of agency reticence and consistently urged
that the use of declaratory orders should be expanded.4 Their efforts have been largely
unsuccessful.
This Report evaluates the current status of declaratory practice in administrative
agencies, urges that the practice should be expanded, and suggests procedures and best
practices that agencies should follow in declaratory proceedings.5 Two fairly recent
developments may improve the likelihood that this project can succeed where others
have failed. First, over the last two decades, the courts have clearly held that a declaratory
order may be properly issued through informal adjudication. This shift removes the most
significant legal hurdle to expanded agency use of declaratory orders. Second, during
the same timeframe, the courts also have shown a greater willingness to review agency
guidance and to scrutinize an agency’s characterization of a document as non-binding.
This has been motivated in part by concern that agencies have been using guidance
documents to evade the procedural requirements of the increasingly “ossified” informal
rulemaking process. This judicial trend may reduce for agencies the comparative appeal
of informal guidance. Beyond these developments, there may be new opportunities for
agencies to use declaratory orders in creative ways to address modern needs. For
example, agencies that adjudicate a large volume of similar claims and face substantial
backlogs may be able to use declaratory orders to streamline their processes.6

4 See generally Jeffrey S. Lubbers & Blake D. Morant, A Reexamination of Federal Agency Use of Declaratory

Orders, 56 ADMIN. L. REV. 1097 (2004).
5 Although the Administrative Conference studied declaratory orders in the early 1980s, it has not
previously adopted any recommendation on the subject. The Conference’s consultant on the previous
project, Professor Burnele V. Powell (then of the University of North Carolina School of Law), published
several articles based on his study. See Burnele V. Powell, Regular Appellate Review, Direct Judicial Review,
and the Role of Review of the Declaratory Order: Three Roads to Judicial Review, 40 ADMIN. L. REV. 451 (1988)
[hereinafter Powell, Three Roads]; Burnele V. Powell, Administratively Declaring Order: Some Practical
Applications of the Administrative Procedure Act’s Declaratory Order Process, 64 N.C. L. REV. 277 (1986)
[hereinafter Powell, Administratively Declaring Order]; Burnele V. Powell, Sinners, Supplicants, and
Samaritans: Agency Advice Giving in Relation to Section 554(e) of the Administrative Procedure Act, 63 N.C. L.
REV. 339 (1985) [hereinafter Powell, Sinners]. The Conference’s most recent relevant work is
Recommendation 2014-6, Petitions for Rulemaking. See 79 Fed. Reg. 75,114, 75,117 (Dec. 17, 2014) [hereinafter
Petitions for Rulemaking]; see also Jason A. Schwartz & Richard L. Revesz, Petitions for Rulemaking, Final
Report to the Admin. Conf. of the U.S. (Nov. 5, 2014), available at https://www.acus.gov/report/petitionsrulemaking-final-report.
6 This possibility may be relevant to the Administrative Conference’s current project on Aggregate Agency
Adjudication. See https://www.acus.gov/research-projects/aggregate-agency-adjudication.

3

Bremer—Declaratory Orders

30-Oct-15

This report is based on a review and analysis of relevant statutes and legislative
history, judicial opinions, administrative materials (e.g., agency regulations, orders,
guidance), and scholarly literature. It also incorporates information obtained through
interviews with personnel from the agencies that have adopted procedural regulations
governing declaratory proceedings, have substantial experience with the use of
declaratory orders, or issue decisions that appear to be analogous to declaratory orders.
Interviews accordingly were conducted with personnel from the Federal
Communications Commission (FCC),7 the Federal Energy Regulatory Commission
(FERC), Federal Maritime Commission (FMC), the Internal Revenue Service (IRS), and
the Surface Transportation Board (STB) (a successor to the Interstate Commerce
Commission (ICC), which had perhaps the most robust declaratory order practice of any
agency). The report proceeds in five parts. Part I provides essential background by
describing the characteristics of the declaratory order, arguing that the device may be
used in informal adjudication, and examining the history of agency use (and non-use) of
declaratory orders. Part II explores legal issues that arise in connection with judicial
review of declaratory orders. Part III catalogs the proper uses of declaratory orders,
considers analogous forms of agency advice-giving, and argues that agencies should use
declaratory orders more frequently. Part IV analyzes the minimum procedural
requirements for declaratory proceedings, describes the procedures agencies currently
use in such proceedings, and suggests best practices. Part V concludes.
I.

THE FUNDAMENTALS OF ADMINISTRATIVE DECLARATORY ORDERS

This part begins by providing background on administrative declaratory orders.
First, it discusses the statutory basis for declaratory orders under the APA and other
statutes and explores the defining characteristics of declaratory orders. Next, it addresses
the question of whether declaratory orders may be issued through informal adjudication.
Finally, it examines the history of agency use (and non-use) of declaratory orders.
A.

What is a Declaratory Order?

Section 5(d) of the APA, which is codified at 5 U.S.C. § 554(e), provides that an
“agency, with like effect as in the case of other orders, and in its sound discretion, may
issue a declaratory order to terminate a controversy or remove uncertainty.”8 Enacted in
1946 and inspired by the then-recent development of state and federal courts’ being
authorized to grant declaratory judgments,9 Section 5(d) was intended to extend to

7 Many if not most of the FCC’s declaratory rulings are issued on delegated authority at the bureau level.

To ensure an adequate understanding of the full range of practices within the agency, I interviewed
employees from the Consumer and Governmental Affairs, International, Media, Wireless
Telecommunications, and Wireline Competition Bureaus, as well as the Office of the General Counsel.
8 5 U.S.C. § 554(e).
9 See, e.g., AG’S REPORT, supra note 2, at 30 (discussing judicial declaratory judgments and stating that “[t]he
time is ripe for introducing into administration itself an instrument similarly devised, to achieve similar

4

Bremer—Declaratory Orders

30-Oct-15

administrative agencies an analogous method for issuing binding rulings capable of
providing clear and certain guidance to regulated parties without requiring those parties
to first act on peril of sanction.10 As with many other aspects of administrative procedure,
agency use of declaratory orders predated the APA.11 But the practice was not
widespread.12 Congress had authorized only a few agencies to issue declaratory rulings,
and the prevailing view was that, in the absence of specific statutory authorization, an
agency was “powerless to render a binding declaratory ruling.”13 The inclusion of
Section 5(d) addressed this difficulty by providing a blanket authorization for
adjudicating agencies to issue declaratory orders. In addition to the APA’s cross-cutting
authorization, Congress has occasionally granted to individual agencies more targeted
statutory authority to issue declaratory orders, often to serve specified purposes.14 In
addition, courts have found support for the issuance of declaratory orders in statutes that
confer broader authorities, such as that to direct “other appropriate relief.”15
Declaratory orders (sometimes also called “declaratory rulings”)16 serve an
important advice-giving function. This is evident in the APA’s text, which describes
declaratory orders as agency decisions that “terminate a controversy or remove
uncertainty.”17 Courts have found these twin statutory purposes essential to the

results in the administrative field.”); cf. John R. Reilly, Declaratory Orders Under the APA—The Need for
Legislation, 52 IOWA L. REV. 657, 658 (1967) (describing the declaratory order as “the administrative
counterpart of the declaratory judgment”).
10 See, e.g., AG’S REPORT, supra note 2, at 6 (explaining that “in order to impart certainty to the administrative
process, and to aid individual citizens seeking an authoritative statement of their rights and duties, the bill
[that became the APA] proposes to authorize agencies to issue binding declaratory rulings”).
11 See, e.g., Bernard B. Goldner, Declaratory Actions, 2 CATHOLIC U.L. REV. 1, 1 (1952) (“Since 1938, the Bureau
of Internal Revenue has been empowered to consummate ‘closing agreements,’ a form of declaratory order,
and other federal agencies have operated under statutes granting them power to issue advisory opinions
and declaratory rulings.”).
12 See, e.g., Kenneth Culp Davis, Administrative Powers of Supervising, Prosecuting, Advising, Declaring, and
Informally Adjudicating, 63 HARV. L. REV. 193, 228 (1949) (“Federal agencies rarely issued declaratory orders
before the APA was enacted, and then only pursuant to special statutory provisions.”).
13 AG’S REPORT, supra note 2, at 31; see also Herman Oliphant, Declaratory Rulings, 24 A.B.A. J. 7, 8 (1938)
(discussing the Treasury’s efforts to secure congressional approval to issue binding declarations to resolve
uncertainty in taxation); but see Davis, supra note 12, at 228-29 (explaining a few qualifications necessary to
the AG’s assertion that agencies are generally powerless to issue declaratory orders).
14 See, e.g., Ashland Oil & Ref. Co. v. Fed. Power Comm’n, 421 F.2d 17, 20 (6th Cir. 1970) (noting that the
Federal Power “Commission has statutory authority to issue declaratory orders,” citing both 5 U.S.C. §
554(e) and 15 U.S.C. § 717(o)); see generally Roger W. Kapp & Robert N. Hart, A Case Against Restraint:
Declaratory Status Orders Under the Investment Company Act of 1940, 61 CORNELL L. REV. 231 (1976)
(examining the SEC’s authority and responsibility to issue declaratory status orders under the Investment
Company Act of 1940).
15 See Climax Molybdenum, 703 F.2d at 452 (quoting 30 U.S.C. § 815(d)).
16 See 47 C.F.R. § 1.2; see also Powell, Sinners, supra note 5, at 365 n. 112 (“The ‘ruling’ designation . . . is
longstanding with the FCC.”).
17 5 U.S.C. § 554(e); see, e.g., British Caledonian Airways, Ltd. v. Civil Aeronautics Bd., 584 F.2d 982, 993 n.23
(1978) (“A declaratory order is any order issued by an agency or staff member at a sufficiently high level,

5

Bremer—Declaratory Orders

30-Oct-15

definition of a valid declaratory order and have held (albeit in relatively rare instances)
that an agency’s decision is not properly characterized as a “declaratory order” if it does
not serve at least one of these purposes.18 An agency decision serves the first statutory
purpose if it resolves “an actual controversy between” two parties.19 More commonly,
and as will be discussed in greater detail in Part III, agencies use declaratory orders to
resolve various kinds of uncertainty regarding the application of existing statutes or
regulations to new or different factual circumstances.20 This is in accord with the
expectations of the APA’s supporters, as the Attorney General’s final report to Congress
explains:
The perils of unanticipated sanctions and liabilities . . . should
be reduced or eliminated. A major step in that direction
would be the establishment of procedures by which an
individual who proposed to pursue a course which might
involve him in dispute with an administrative agency, might
obtain from that agency, in the latter’s discretion, a binding
declaration concerning the consequences of the proposed
action.21
In keeping with these intentions, agencies have used declaratory orders to clarify the
regulatory status of proposed projects so as to facilitate the necessary (and often
significant) financial investment to launch them,22 to put regulated parties on notice that
certain conduct will henceforth trigger sanctions or other enforcement action,23 or to
clarify the boundary between state and federal regulation.24 As these varied purposes
perhaps suggest, it is often difficult to draw a clear distinction between declaratory orders

that has sufficient formality, that does not coerce, and that has sufficient binding effect to be judicially
reviewable.”); Goldner, supra note 11, at 1 (“The declaratory ruling or order is the device whereby
administrative agencies make decisions in advance of affirmative action so that rights and duties are
declared, and affected persons can regulate their conduct and actions accordingly.”).
18 See Hollister Ranch Owners’ Ass’n v. FERC, 759 F.2d 898 (D.C. Cir. 1985).
19 See W. Coast Truck Lines v. Am. Indus., Inc., 893 F.2d 229, 233 (9th Cir. 1990). Where the parties have
come before the agency with a question that is at issue in state or federal litigation, the agency’s decision
may “resolve controversy” within the meaning of Section 554(e) even if it is not outcome-determinative
before the courts. See City of Chicago v. FCC, 199 F.3d 424, 428-29 (7th Cir. 1999).
20 See infra at Part. III.A; see, e.g., British Caledonian Airways, 584 F.2d at 989 (“That some tariffs did not contain
information on cancellation charges while others did, points to exactly that sort of ‘uncertainty’ in the
interpretation of the law, by those subject to it, which declaratory orders are explicitly authorized to remove
under the terms of 5 U.S.C. § 554(e).”).
21 AG’S REPORT, supra note 2, at 30-31.
22 See FERC, Primary Power, LLC, Order on Petition for Declaratory Order and Related Determinations,
131 F.E.R.C. ¶ 61,015, P23 (April 13, 2010).
23 See FCC v. Pacifica Found., 438 U.S. 726, 732-35 (1978).
24 See State Corp. Comm’n v. FCC, 787 F.2d 1421, 1428 (10th Cir. 1986).

6

Bremer—Declaratory Orders

30-Oct-15

that remove uncertainty and those that terminate controversy. In many instances, the act
of removing uncertainty necessarily terminates or prevents controversy.
The declaratory order is therefore best understood as the adjudicatory
complement to the more familiar, legislative or informal approaches to agency advice
giving (e.g., interpretative rules, policy statements, advisory opinions, and other forms of
non-binding agency guidance).25 The advisory opinion—an informal, non-binding form
of agency guidance typically offered to help regulated parties understand how
regulations will apply to them before they act—traditionally has been viewed as the
immediate alternative to the declaratory order.26 Advisory opinions are typically
provided by agency staff, often orally (e.g., by phone), with little formality or delay.27
More often than not, these opinions meet the immediate needs of both agencies and
regulated parties, furnishing reliable guidance with little burden imposed upon the
agency. The disadvantage of advisory opinions is that it they do not bind the agency.28
As a result, although advisory opinions can do much to resolve regulatory uncertainty,
they cannot wholly or reliably eliminate it.29
In contrast to advisory opinions, the advantage and key characteristic of the
declaratory order is that it has binding legal effect. This is grounded in APA’s text, which
provides that an agency may issue a declaratory order “with like effect as in the case of

See, e.g., FERC, Interpretative Order Modifying No-Action Letter Process and Reviewing Other
Mechanisms for Obtaining Guidance, 123 F.E.R.C. ¶ 61,157, P19 & P20 (May 15, 2008), available at
http://www.ferc.gov/whats-new/comm-meet/2008/051508/M-2.pdf [hereinafter FERC Interpretative
Order on Guidance] (explaining how declaratory orders fit among the various mechanisms available for
obtaining guidance from the Commission and its staff).
26 See AG’S REPORT, supra note 2, at 31.
27 See, e.g., FERC Interpretative Order on Guidance, supra note 25, at P23, P25, P27, P28-P29, P34 (describing
various, informal mechanisms available for obtaining non-binding guidance).
28 E.g., 18 C.F.R. § 388.104 (governing informal advice from Commission staff); id. § 385.1901(f)(6) (providing
that FERC’s General Counsel may provide written interpretations of the National Gas Policy Act or rules
issued by the Commission thereunder, “[t]he interpretation of the General Counsel is not the interpretation
of the Commission” and “is given without prejudice to the Commission's authority to consider the same
or like question and to issue a declaratory order to take other action which has the effect of rescinding,
revoking, or modifying the interpretation of the General Counsel”); see also AG’S REPORT, supra note 2, at
31 (“Advisory rulings are not an entirely satisfactory device, however, because they invariably carry an
explicit or implicit warning that the agency is not bound by the opinion it has rendered.”); Oliphant, supra
note 13, at 8 (discussing the unfortunate fallout of an IRS decision not to adhere to the advisory opinion
provided to a taxpayer in advance of a financial transaction).
29 See, e.g., AG’S REPORT, supra note 2, at 31 (explaining that, because they are not binding, “advisory rulings
do not entirely eliminate, though they materially reduce, the element of uncertainty”).
25

7

Bremer—Declaratory Orders

30-Oct-15

other orders.”30 The binding effect of a declaratory order is what allows it to offer the full
measure of regulatory certainty that other forms of agency guidance cannot provide.31
The binding effect of a declaratory order is naturally limited by the nature of the
device. First, because declaratory orders “are only as effective as other adjudicatory
orders, they are not binding upon nonparties.”32 Only the agency and the named party
(or parties) are bound by the action.33 While the named party is often an individual
regulated person or entity who petitioned for the declaration, an agency may also issue
an order that applies to all similarly situated regulated parties, provided that such
breadth is reasonable within the context of the agency’s statutory authority and the
nature of the controversy or other issue the order is designed to address. 34 Second,
whether directed towards one or more regulated parties, a declaratory order’s binding
effect is non-coercive.35 That is, it provides a declaration that is legally binding without
itself imposing a penalty, sanction, or other liability. The non-coercive character of the
declaratory order is essential—without it, the device would not operate effectively as

30 5 U.S.C. § 554(e); see Bernard Schwartz, The Administrative Procedure Act in Operation, 29 N.Y.U. L. REV.

1173, 1213 (1954). The APA defines “order” as “the whole or a part of a final disposition, whether
affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making
but including licensing.” 5 U.S.C. § 551(6). The APA’s definition of an “adjudication” as an “agency process
for the formulation of an order” is therefore a catchall category for non-rulemaking actions, including
declaratory orders. Id. § 551(7). Finally, the APA describes “final opinions, including concurring and
dissenting opinions,” along with “orders,” as products of adjudication. Id. § 552(a)(2)(A).
31 See, e.g., AG’S REPORT, supra note 2, at 31 (“Greater certainty [beyond that provided by advisory rulings]
can be achieved only by attaching to the ruling the same binding effect upon the agency that is attributed
to other adjudications.”); but see Exelon Wind 1, 766 F. 3d at 391 (mischaracterizing a declaratory order as
merely informal guidance).
32 New England Tel. & Tel. Co. v. Pub. Utils. Comm’n, 565 F. Supp. 949, 959 n.15 (D. Me. 1983) (internal
citation omitted).
33 But see Frederick F. Blachly & Miriam E. Oatman, 34 GEO. L.J. 407, 418 (1946) (“The determination made
for one individual would in reality be a general determination, since the declaratory order is to have ‘like
effect as in the case of other orders,’ that is, the force of law.”).
34 See, e.g., Merchs. Fast Motor Lines, Inc. v. ICC, 5 F.3d 911, 916 (5th Cir. 1993) (upholding an ICC
declaratory order that “applies to all shippers who can demonstrate that their shipping patterns match the
general patterns assumed in the order”). If an agency is contemplating the issuance of a broadly applicable
declaratory order, it may need to take steps to ensure that all interested parties have an opportunity to
comment or otherwise participate in the proceedings. This can be accomplished through basic notice-andcomment procedures. See City of Arlington v. FCC, 668 F.3d 229, 242-43 (5th Cir. 2012), aff’d 133 S. Ct. 1863
(2013).
35 See, e.g., Robert John Hickey, Declaratory Orders and the National Labor Relations Board, 45 NOTRE DAME
LAW. 89, 89 (1969) (defining a declaratory order as “a noncoercive, definite, binding, and reviewable
adjudication declaring actual, present, substantive rights of adverse parties on a question of law”); Note,
Administrative Declaratory Orders, 13 STAN. L. REV. 307, 307 (1961) (explaining that declaratory orders “are
noncoercive declarations of rights rather than orders imposing penalties or liabilities” (citing 1 DAVIS,
ADMINISTRATIVE LAW TREATISE § 4.10 at 268 (1958)); see generally 5 U.S.C. § 551(10) (defining “sanction”).
As Professor Davis explained: “The only difference between declaratory orders or judgments and other
orders and judgments is presence or absence of the element of coercion.” 1 DAVIS, ADMINISTRATIVE LAW
TREATISE § 4.10 at 268 (1958)).

8

Bremer—Declaratory Orders

30-Oct-15

voluntary mechanism through which regulated parties may seek and obtain a binding
declaration of the law without first acting in peril of sanction.36 A third important
limitation is that a declaratory order is binding only in the factual circumstances on which
it is based.37 A regulated party that has requested and received a declaratory order based
on certain facts will not be able to use the order to shield itself in a subsequent state or
federal enforcement proceeding based on different facts.38 Finally, like judicial opinions,
agency declaratory orders may have precedential value that exceeds their binding
effect.39 Agency personnel and regulated parties not subject to an order may nonetheless
refer to it for reliable guidance. In some cases, courts may even rely upon an
administrative declaratory order to resolve a dispute between private parties who were
not party to the agency’s adjudication.40
It bears emphasizing that the binding effect of a declaratory order does not prevent
an agency from adopting a different interpretation or pursuing a different policy in a
subsequent proceeding, including through another declaratory order or in an
enforcement proceeding or other adjudication.41 This is so even if the agency has

36 See Walter Gellhorn, Declaratory Rulings by Federal Agencies, 221 ANNALS AM. ACAD. POL. & SOC. SCI. 153,

155 (1942). An agency may, of course, issue a coercive order in a later proceeding on the authority of the
previously issued declaratory order. This may occur if the party to the declaratory order is later found in
noncompliance without having successfully challenged the declaration on appeal. Or the agency may rely
on the declaratory order as precedent in a proceeding against a third party found in noncompliance.
Another advantage of a declaratory order, in contrast to a coercive action such as a cease-and-desist order,
is that it “may be either affirmative or negative, whereas the cease-and-desist order is necessarily negative.”
Davis, supra note 12, at 203. The advantage of a negative use of a declaratory order is that an agency may
use it to disapprove of a party’s proposed action before imposing a sanction or requiring the party to act in
peril of sanction.
37 See Texas v. United States, 866 F.2d 1546, 1551 (5th Cir. 1989); see also Central Freight Lines v. ICC, 899
F.2d 413, 417 (5th Cir. 1990) (“[T]he order in this case settles rights and removes uncertainty in that it allows
[the named freight carrier] to rely on its interstate certificate as authorization for its actions so long as its
operations conform to the facts it presented to the ICC and which the ICC assumed in the declaratory
order.”).
38 See, e.g., Merchs. Fast Motor Lines, Inc., 5 F.3d at 918 (“The [declaratory] order would not insulate the
[regulated parties] from a state regulatory proceeding if facts are presented which are different from those
assumed in the declaratory order.”); Central Freight Lines, 899 F.2d at 418 (“[T]he ICC’s order in this case
would not insulate the carrier from a state law regulatory proceeding if facts were proved that were
different from those supposed by the order.”).
39 See, e.g., Radiofone, Inc. v. FCC, 759 F.2d 936, 938 (D.C. Cir. 1985) (discussing the precedential value of a
declaratory order).
40 See, e.g., Owner-Operator Indep. Drivers Ass’n v. Arctic Express, Inc., 87 F. Supp. 2d 820, 828-31 (S.D.
Ohio 2000) (giving Chevron deference to an ICC declaratory order and relying on the precedential value of
that order to resolve the case before it).
41 See Clark-Cowlitz Joint Operating Agency v. FERC, 826 F.2d 1074, 1076 (D.C. Cir. 1987) (en banc); see also
Central Freight Lines, 899 F.2d at 417 (affirming an ICC declaratory order in which “[t]o reach [its]
conclusion, the ICC found it necessary to overrule an earlier decision”).

9

Bremer—Declaratory Orders

30-Oct-15

successfully defended its first interpretation in the federal courts.42 After all, as the D.C.
Circuit has observed, “an ambiguous or broadly worded statute may admit of more than
one interpretation that is reasonable and consistent with Congressional intent.” 43 As in
rulemaking, an agency is permitted to change its position on an issue so long as it explains
the decision and the new interpretation is reasonable and permissible in light of the
relevant statutory language.44
Finally, in the absence of any manifest injustice, a declaratory order may have
retroactive effect. “The general principle is that when as an incident of its adjudicatory
function an agency interprets a statute, it may apply the new interpretation in the
proceeding before it.”45 This general principle applies so long as the retrospective
application of the agency’s new interpretation will work no manifest injustice. The D.C.
Circuit has articulated “a non-exhaustive list of five factors” used to evaluate a claim of
manifest injustice. These factors include:
(1) whether the particular case is one of first impression, (2)
whether the new rule represents an abrupt departure from
well established practice or merely attempts to fill a void in
an unsettled area of law, (3) the extent to which the party
against whom the new rule is applied relied on the former
rule, (4) the degree of the burden which a retroactive order
imposes on a party, and (5) the statutory interest in applying
a new rule despite the reliance of a party on the old
standard.46
Although the courts “have generally shown little or no deference to agencies’ rejection of
claims that retroactivity produced manifest injustice,” they “have been quite deferential
to decisions regarding the retroactive effect of agency action where retroactivity would
42 See, e.g., Clark-Cowlitz, 826 F.2d at 1080-81 (“[A]s to claim preclusion, FERC’s successfully defending its

position (at that time) in [an appeal from its previous declaratory order] does not bar it from asserting a
different position in the current proceedings.”).
43 Clark-Cowlitz, 826 F.2d at 1081.
44 See, e.g., Central Freight Lines, 899 F.2d at 423-26 (upholding an agency declaratory order that adequately
explained its decision to overrule prior agency precedent to establish a new interpretation of the agency’s
statute); Clark-Cowlitz, 826 F.2d at 1079-80 (affirming agency reversal of position that was reasonable and
properly explained); see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009) (holding that
an agency’s decision to reverse its position must be adequately explained, but is subject to no more
searching review than was its initial decision); Nat’l Cable & Telecommunications Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 982-83 (2005) (holding that Chevron applies to an agency’s interpretation of an
ambiguous statutory term, even if a court has previously interpreted that term).
45 Clark-Cowlitz, 826 F.2d at 1081 (citing NLRB v. Wyman-Gordon, 394 U.S. 759, 765-66 (1969)); but see ClarkCowlitz, 826 F.2d at 1093 (Mikva, J., dissenting) (“There is no such general principle under the law.”).
46 Retail, Wholesale & Dept. Store Union v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972); see also Clark-Cowlitz,
826 F.2d at 1081-86 (using the Retail, Wholesale factors to evaluate (and ultimately reject) a claim that FERC’s
retrospective application of a new interpretation worked a manifest injustice).

10

Bremer—Declaratory Orders

30-Oct-15

not work a manifest injustice.”47 Moreover, the fact that an agency’s decision resolves
some uncertainty in the law (as declaratory orders often do) does not ordinarily suggest
any manifest injustice in that decision’s retroactive application.48
In sum, an administrative declaratory order may be defined as an agency (1) order,
produced through adjudication, (2) that resolves uncertainty or terminates controversy
(3) without imposing sanctions by (4) binding the agency and the named party or parties
(5) on the facts stated (6) and with optional retroactive effect, in the absence of any
manifest injustice, (7) providing guidance to agency personnel, other regulated parties,
courts, and the public through its precedential effect.
B.

Formal vs. Informal Adjudication

The text of the APA suggests another possible characteristic of the declaratory
order: it is necessarily a creature of formal adjudication.49 If so, two significant
consequences might follow. First, agencies might only be able to issue declaratory orders
to address matters that are required by statute to be conducted in accordance with the
APA’s formal adjudication provisions.50 Second, an agency might be required to conduct
a hearing on the record before it could issue a declaratory order.51
Historically, the dominant view held that the APA’s declaratory orders provision
applied only in the context of formal adjudications. The legislative history strongly
suggests that the drafters intended to so limit the availability of the device. 52 Consistent
with this suggestion, the AG’s Manual, which was produced immediately after the APA’s
47 Qwest Servs. Corp. v. FCC, 509 F.3d 531, 539 (D.C. Cir. 2007).
48 Id. at 540.
49 “Formal adjudication” is routinely used as a term of art to refer to adjudications conducted in accord

with the APA’s adjudication provisions, 5 U.S.C. §§ 554, 556, and 557. See, e.g., ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES OFFICE OF THE CHAIRMAN, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION: EVALUATING THE STATUS AND PLACEMENT OF ADJUDICATORS IN THE FEDERAL SECTOR HEARING
PROGRAM 5 (Mar. 31, 2014) [hereinafter EEOC REPORT], available at https://www.acus.gov/researchprojects/status-and-placement-agency-adjudicators. In contrast, “informal adjudications” are those not
required by statute to be conducted in accord with these provisions of the APA. The terminology leaves
something to be desired, because many so-called “informal” adjudications are voluntarily conducted using
judicialized procedures that look much like those mandated by the APA. Some, including Professor
Michael Asimow in his work for the Administrative Conference, accordingly eschew the usual
terminology.
See Admin. Conf. of the U.S., Federal Administrative Adjudication,
https://www.acus.gov/research-projects/federal-administrative-adjudication. For the sake of simplicity,
however, this report will use the terms “formal” and “informal” in their traditional senses.
50 See 5 U.S.C. § 554(a)(1) (providing that Section 554 applies to “every case of adjudication required by
statute to be determined on the record after opportunity for an agency hearing,” with six enumerated
exceptions).
51 See Wilson v. A.H. Belo Corp., 87 F.3d 393, 397 (1996).
52 See, e.g., S. DOC. NO. 248, 79th Cong., 2d Sess. 204 (1946) (stating that declaratory orders under § 5(d)
“may be issued only where the agency is empowered by statute to hold hearings and the subject is not
expressly exempted by the introductory clauses of this section”).

11

Bremer—Declaratory Orders

30-Oct-15

adoption, explained that the APA’s “grant of authority to the agencies to issue
declaratory orders is limited by the introductory clause of section 5 so that such
declaratory orders are authorized only with respect to matters which are required by
statute to be determined ‘on the record after opportunity for an agency hearing.’” 53 On
this view, if no statute requires formal adjudication, or the matter is one exempted from
the APA’s formal adjudication provisions, Section 5(d)’s grant of authority to issue
declaratory orders is unavailable to the agency.54 As an example, the AG’s Manual
explained that the new provision did not authorize the SEC to issue declaratory orders in
lieu of informal advisory opinions “as to whether particular securities must be registered
under the Securities Act” because there was “no statutory agency hearing procedure in
which this question can be determined.”55 For decades following the APA’s adoption,
scholars and experts generally also interpreted the statute to limit the issuance of
declaratory orders to formal adjudications.56
This historical view has since been abandoned. Courts have held that agencies
may issue declaratory orders in informal adjudicatory proceedings, to address matters
not subject to formal adjudication under the APA and without first conducting a hearing
on the record.57 The Supreme Court’s decision in Weinberger v. Hynson, Westcott &
Dunning58 paved the way for this approach. In Weinberger, the Court rejected an
argument that the Food and Drug Administration could not issue a declaratory order to
address a matter that the parties argued was susceptible of resolution “only in a court
proceeding where there is an adjudication ‘on the record of [a] hearing.’”59 Concluding
that the APA “does not place administrative proceedings in that straitjacket,” the Court
reasoned that “paralysis would result if case-by-case battles in the courts were the only

53 Tom C. Clark, U.S. DEP’T OF JUSTICE, ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE

ACT 59 (1947), available at http://archive.law.fsu.edu/library/admin/attorneygeneralsmanual.pdf
[hereinafter AG’S MANUAL].
54 See id.; see also 5 U.S.C. §§ 554(a)(1)-(6) (enumerating exceptions to the APA’s formal adjudication
requirements).
55 AG’S MANUAL, supra note 53, at 59.
56 See Powell, Administratively Declaring Order, supra note 5, at 279; Hickey, supra note 35, at 90; Administrative
Declaratory Orders, supra note 35, at 311-12; TASK FORCE ON LEGAL SERVICES AND PROCEDURE OF THE HOOVER
COMMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, REPORT ON LEGAL
SERVICES AND PROCEDURE 189 (1955) [hereinafter HOOVER COMMISSION REPORT]; Goldner, supra note 11, at
8; but see Davis, supra note 12, at 230-32 (arguing that the apparent textual limitations on the use of
declaratory orders “have little rational foundation and are probably the product of inadvertence” and
concluding that an agency’s authority to issue a declaratory order in informal adjudication “in spite of the
introductory clause of § 5 is consistent with statutory language, is supported by legislative history, and is
impelled by practical needs”).
57 Another way that agencies may lawfully streamline adjudication is by using summary decision
procedures. See Admin. Conf. of the U.S., Recommendation 70-3, Summary Decision in Agency Adjudication,
38 Fed. Reg. 19,785 (July 23, 1973).
58 412 U.S. 609 (1973).
59 Id. at 625-26.

12

Bremer—Declaratory Orders

30-Oct-15

way [for an agency] to protect the public.”60 Subsequent courts have read Weinberger
more expansively to mean that agencies may issue declaratory orders under 5 U.S.C. §
554(e) through informal adjudication.61 Scholars who have addressed the issue in more
recent times have similarly interpreted the APA.62
This approach is in accord with background principles of administrative law that
recognize substantial agency discretion over procedural matters. One such principle
holds that “[a]gencies have discretion to choose between adjudication and rulemaking as
a means of setting policy.”63 At a more granular level, agencies also have substantial
discretion to define the procedures they will use to conduct specific kinds of
proceedings.64 This discretion is limited only by the requirement that agencies observe
the minimum (and minimal) requirements imposed by the APA and the Constitution’s
guarantee of due process. The broad scope of agency procedural discretion is especially
impactful in informal adjudication, perhaps in part because the APA does not establish
minimum procedural requirements for informal adjudication, as it does for informal
rulemaking.65 Here, the consequence of agency discretion is extraordinary diversity
among the procedures employed in the many informal adjudication programs that exist
throughout the federal government.66 More importantly, the APA’s express grant to
agencies of authority to issue declaratory orders in formal adjudications need not be

60 Id. at 626.

The Court further observed that “great inequities might well result” if the FDA was required
to proceed individually as “competitors selling drugs in the same category would go scot-free until the
tedious and laborious procedures of litigation reached them.” Id.
61 See Am. Airlines, Inc. v. DOT, 202 F.3d 788, 796-97 (5th Cir. 2000); Wilson, 87 F.3d at 397; Texas, 866 F.2d
at 1555. Some opinions, however, seem to still to imply (typically without analysis) that the APA’s grant
of authority to issue declaratory orders is limited to matters required by statute to be adjudicated in accord
with the APA’s formal adjudication provisions. See, e.g., Arctic Express, 87 F. Supp. 2d at 828 n.11 (quoting
5 U.S.C. § 554(e) in conjunction with 5 U.S.C. § 554(a)).
62 See Lubbers & Morant, supra note 4, at 1112-14.
63 Am. Airlines, 202 F.2d at 797 (citing NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294
(1974)); see also Cent. Texas Tel. Coop., Inc. v. FCC, 402 F.3d 205, (D.C. Cir. 2005) (applying this principle to
FCC’s use of declaratory ruling); British Caledonian Airways, 584 F.2d at 987 (explaining that “[w]hile
rulemaking might well be advisable, or even required, when mandating the filing of information not
plainly within the comprehension of extant statutes and regulations, the Board was well within the bounds
of procedural propriety in using a declaratory order” to clarify filing requirements (citing Yale Broad. Co.
v. FCC, 478 F.2d 594, 599-601 (1973))).
64 E.g., Climax Molbdenum Co. v. Sec’y of Labor, 703 F.2d 447, 451 (10th Cir. 1983) (“[A]dministrative
agencies retain substantial discretion in formulating, interpreting, and applying their own procedural
rules.” (citing Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970))).
65 Compare 5 U.S.C. § 553 (establishing minimum procedures for informal rulemaking without requiring
observance of the hearing requirements of §§ 556 and 557), with id. § 554 (establishing minimum procedures
for adjudications formally conducted in accord with §§ 556 and 557; see also, e.g., Occidental Petroleum
Corp. v. Sec. & Exch. Comm’n, 873 F.2d 325, 337 (D.C. Cir. 1989) (explaining that “no provision of the APA
contains specific procedures to govern an informal agency adjudication”).
66 See Federal Administrative Adjudication, available at https://www.acus.gov/research-projects/federaladministrative-adjudication (cataloging the diverse array of informal adjudicator procedures created and
employed by agencies).

13

Bremer—Declaratory Orders

30-Oct-15

read—and has not been read—to prevent agencies from using their otherwise broad
procedural discretion to use declaratory orders in informal adjudications.67 The D.C.
Circuit has thus implied that an agency’s authority to issue a declaratory order in
informal adjudication may be grounded in its own regulations, even if there is some
doubt regarding the applicability of Section 5(d) to the proceeding at issue.68
C.

History of Agency Use of Declaratory Orders

Although the APA’s declaratory orders provision was intended to have a
substantial effect on administrative practice, agencies historically have made little use of
it.69 Studies conducted in the 1950s revealed minimal use of the then-recent grant of
authority.70 In 1955, the Hoover Commission’s Task Force on Legal Services and
Procedure described agency use of declaratory orders as “negligible.”71
A
contemporaneous study by the House Committee on Government Operations found that
“[o]ut of 38 agencies engaged in adjudicative activities, only 7 acknowledged that they
had issued declaratory orders under the APA.”72 By the early 1960s, only two agencies
had adopted procedural regulations governing the issuance of declaratory orders.73 As
of the end of that same decade, one additional agency had followed suit.74
Limited agency use of declaratory orders persisted well beyond the APA’s infancy.
In 1968, an American Bar Association subcommittee reported that only two surveyed
agencies (the Federal Power Commission (FPC) and the FMC) had adopted procedural
rules for issuing “declaratory orders,”75 while a third agency (the FCC) had adopted
procedural rules for issuing “declaratory rulings.”76 The subcommittee concluded that,

67 Cf. EEOC REPORT, supra note 49, at 23-32 (arguing that the mandatory use of administrative law judges

(ALJs) in formal adjudication implies no restriction on agency discretion to voluntarily appoint ALJs to
preside in informal adjudications).
68 See Cent. Texas Tel. Coop., 402 F.3d at 210.
69 See Schwartz, supra note 30, at 1212-13.
70 See Goldner, supra note 11, at 10-15; see also Reilly, supra note 9, at 659 (“The history of the past twenty
years demonstrates that the declaratory order has been largely ignored by our administrative agencies.”).
71 HOOVER COMMISSION REPORT, supra note 56, at 188-89 (1955).
72 Reilly, supra note 9, at 659 (citing WALTER GELLHORN & CLARK BYSE, CASES ON ADMINISTRATIVE LAW 70102 (4th ed. 1960)).
73 Reilly, supra note 9, at 659 (citing DELMAS H. NELSON, ADMINISTRATIVE AGENCIES OF THE USA: THEIR
DECISIONS AND AUTHORITY 76-77 (1964)).
74 See Reilly, supra note 9, at 659-60
75 See Comment, Declaratory Orders—Uncertain Tools to Remove Uncertainty, 21 ADMIN. L. REV. 257, 257, 258
(1969) [hereinafter Uncertain Tools]. The report, which was prepared by the Subcommittee on Declaratory
Orders of the Administrative Process Committee of the American Bar Association’s Administrative Law
Section, surveyed the use of declaratory orders by the ICC, FPC, Federal Trade Commission, Securities and
Exchange Commission, FCC, FMC, and Food and Drug Administration. See id. at 257.
76 The report expressed skepticism about the accuracy of the FCC’s position that “declaratory rulings” and
“declaratory orders” are synonymous. See id. at 258 (noting that “a recent Court of Appeals decision has
cast considerable doubt upon [the FCC’s] attempted analogy”). It is interesting that this terminological

14

Bremer—Declaratory Orders

30-Oct-15

despite the apparent usefulness of declaratory orders, “neither the agencies nor the
practicing bar are availing themselves of the declaratory order procedures presently
available to the degree expected when the project was undertaken.”77 Only 43 petitions
for declaratory order were filed with the FPC between 1946 and 1966, and “11 of these
were filed in 1966.”78 The practice before the FMC was even more limited, with only four
petitions for declaratory order docketed between 1961 and 1966.79 The FCC’s use of
“declaratory rulings” was also limited to “only a dozen or so instances” in the 1950s and
“a mere ‘handful’ in the early 1960s.”80 More recent studies conducted since that time
suggest ongoing and pervasive administrative indifference to declaratory orders.81
At least two of the explanations that have been offered to explain this indifference
were grounded in interpretations of the APA that no longer prevail.82 First, and as
discussed in the previous section, the inclusion of the declaratory orders provision in the
APA’s formal adjudication provision was long viewed as a significant limitation on the
availability of the device.83 Although the courts began to move away from this
interpretation in the 1970s, it appears to have continued to hold sway within the bar until
at least the 1980s. More recently, however, the courts’ position has become clearer, and
expert opinion appears to have evolved accordingly.84 As discussed in greater detail in
Part III.A., below, the few agencies that have a robust declaratory orders practice often
use these orders to address matters not subject to mandatory formal adjudication under
the APA. Second, some have placed blame on the statute’s language authorizing an
agency “in its sound discretion” to issue a declaratory order,85 which suggests the
possibility of an agency exercising its discretion not to issue a declaratory order.86
Initially, the courts held that such a negative exercise of discretion was unreviewable, a
remedy that may have emboldened agencies in their disinclination to use declaratory

issue created such controversy given that the FCC was not the first to refer to the “declaratory ruling.” See
AG’S REPORT, supra note 2, at 30. The FCC has continued to use the “declaratory ruling” terminology to
the present day, and the courts have concluded that, despite the differing terminology, such rulings qualify
as adjudicatory orders. See City of Arlington, 668 F.3d at 241.
77 Uncertain Tools, supra note 75, at 263.
78 Id. at 259.
79 Id. at 260.
80 Id. at 260-61. The survey of the FCC was published separately and provides greater detail. See Arthur
Stambler, the Declaratory Order at the Federal Communications Commission, 21 FED. COMM. B.J. 123 (1967).
81 See Powell, Sinners, supra note 5, at 344, 372.
82 E.g., Reilly, supra note 9, at 660 (“Blame for the ineffectiveness of section 5(d) has, at times, been primarily
assigned to the agencies intended to utilize its provisions. It is more accurate, however, to state that fault
lies as heavily with the authors of the provision as it does with the agencies.” (internal footnotes omitted)).
83 See supra at Part. I.B.
84 See City of Arlington, 668 F.3d at 241; Lubbers & Morant, supra note 4, at 1112.
85 5 U.S.C. § 554(e).
86 See, e.g., Schwartz, supra note 30, at 1213 (“arguing that the minimal use of declaratory orders ‘has been
due primarily to the fact that under Section 5(d) the question of whether a declaratory order should be
issued in a particular case is left to the discretion of the agency concerned.’”).

15

Bremer—Declaratory Orders

30-Oct-15

orders. As discussed below, however, this interpretation was short-lived and is no longer
good law.87
Other explanations for the modest effect of Section 5(d) have been grounded not
in law but in practical considerations. Although enthusiasm for declaratory orders
appears to have been widespread over the years,88 a minority of experts has been deeply
skeptical of the usefulness of declaratory orders in the administrative context.89 For
example, two scholars at the Brookings Institution, writing just before the APA’s
enactment, argued that the declaratory order “seems inapplicable to all controversies
settled by administrative action” and “would be fraught with many dangers.”90 A more
commonly expressed concern has been that a more receptive attitude towards
declaratory orders (and petitions therefor) might result in a flood of requests that would
impose a significant burden on agencies and undermine their ability to establish their
own priorities and determine how best to use limited available resources.91 Perhaps out
of a desire to discourage petitions for declaratory order, most agencies have not adopted
procedures governing declaratory proceedings.92 The private sector also apparently has
been reluctant to request declaratory relief from administrative agencies.93 Finally, it has
been persuasively argued that the ability to provide regulatory guidance through non-

87 See infra at Part II.A.
88 See, e.g., Gellhorn, supra note 36, at 155 (“There is a clear need for a [declaratory] device within the

administrative process, which in many of its branches is even more dynamic and more comprehensive, and
therefore a source of even more uncertainty, than the law of the judicial process.”); see also infra at note 95
and accompanying text (discussing the substantial support over the years for expanded agency use of
declaratory orders).
89 See Blachly & Oatman, supra note 33, at 417-21; see also Powell, Sinners, supra note 5, at 345 (noting that
some have objected to declaratory orders in administrative adjudication because of “the alleged lack of
concreteness that would attend agency attempts to resolve disputes prior to the point at which the
application of agency compliance sanctions would be appropriate”).
90 Blachly & Oatman, supra note 33, at 418.
91 See, e.g., id. at 419 (arguing that “administrative authorities might well be so beset with requests for
declarations as to seriously interfere with their work”). This same concern arises in connection with
petitions for rulemaking. See Schwartz & Revesz, supra note 5, at 61.
92 See, e.g., Powell, Sinners, supra note 5, at 372 (“The procedure is under-utilized as a result of the continuing
failure of most federal agencies to adopt explicit implementing regulations.”).
93 See, e.g., Goldner, supra note 11, at 10 (noting that “the businessmen and other individuals who should
request the[] issuance” of declaratory orders “are slow to adopt this form of procedure”). It is hard to say
why the private sector has historically given declaratory orders such a cold reception. One explanation
may be reluctance to try a new, untested procedure in lieu of the established methods of conducting
business with the agency. The agencies’ general failure to adopt procedural regulations governing
declaratory proceedings may have rendered the device obscure (and thus unnoticed by the private bar) or
may have given regulated parties the impression that petitions for declaratory order would be unwelcome
or ineffective and thus a waste of time and resources.

16

Bremer—Declaratory Orders

30-Oct-15

binding documents not subject to judicial review has simply offered a comparatively
more attractive alternative to the declaratory order.94
Scholars, government officials, and other experts have consistently argued that
agencies should expand the use of declaratory orders, and some of the more formidable
obstacles to achieving that goal have been removed over the years.95 The courts have
moved away from interpreting the APA to limit declaratory orders to formal adjudication
and no longer deem absolute the agencies’ discretion to refuse requests for declaratory
relief.96 In addition, in recent decades, courts have demonstrated a greater willingness to
review other forms of non-binding regulatory guidance.97 Concerned about agency
avoidance of the increasingly ossified rulemaking process, courts are more likely now to
scrutinize an agency’s characterization of a document as guidance or an interpretative
rule exempt from the APA’s notice-and-comment requirements.98 The question of how
to distinguish between legislative rules and non-legislative rules or other non-binding
guidance is exceptionally difficult and a matter subject to much debate.99 The Supreme
Court recently declined an opportunity to provide some clarity on this matter.100
Despite all this, modern administrative practice has changed little: declaratory
orders remain underused. As Part III details, there are still relatively few agencies that
issue declaratory orders or have regulations establishing procedures for conducting
declaratory proceedings.101
Before turning to that discussion, however, some
consideration of the issues that arise in connection with judicial review of administrative
declaratory orders is in order.

94 See Powell, Sinners, supra note 5, at 353-56; cf Goldner, supra note 11, at 15 (“The underlying, recurrent

theme of the letters received by the author [from federal agencies] is that the agencies who determine
private rights are loath to issue a ruling which binds them conclusively.”).
95 See, e.g., Lubbers & Morant, supra note 4, at 1100 (urging increased agency use of declaratory orders);
HOOVER COMMISSION REPORT, supra note 56, at 187 (“Agencies should make greater use of declaratory
orders, advisory opinions, and other shortened procedures.”); Gellhorn, supra note 36, at 159 (arguing that
inclusion of the declaratory orders provision in the APA “should prove extremely valuable”).
96 See supra at Part I.B.
97 See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000) (holding that an EPA
guidance document was final agency action subject to judicial review).
98 See, e.g., id. at 1020 (expressing concern that agencies are increasingly shifting to the use of guidance
documents as a way of avoiding the rulemaking process and evading judicial review); see generally Robert
A. Anthony, Interpretative Rules, Policy Statements, Guidances, Manuals, and the Like—Should Federal Agencies
Use Them to Bind the Public?, 41 DUKE L.J. 1311 (1992).
99 See generally John F. Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893 (2004); Richard J. Pierce, Jr.,
Distinguishing Legislative Rules From Interpretative Rules, 52 ADMIN. L. REV. 547 (2000).
100 See Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015).
101 See infra at Part III.

17

Bremer—Declaratory Orders
II.

30-Oct-15

JUDICIAL REVIEW AND RELATED LEGAL CONSIDERATIONS

This part examines the legal issues that arise in connection with judicial review of
declaratory orders. Rather than providing an exhaustive analysis of judicial precedent,
it focuses on the issues that may be most relevant from the perspective of an agency that
is considering whether, how, and in what circumstances to use declaratory orders. The
first section begins by discussing the judicial reviewability of declaratory orders and
agency refusals to institute declaratory order proceedings, including by addressing the
limitations on collateral challenges to declaratory orders.102 The second section explains
that, although the case and controversy requirement of Article III does not restrict an
agency’s authority to issue a declaratory order, it may impede a court’s ability to
judicially review the order.103 This section also considers conceptually related issues that
may affect (legally or prudentially) an agency’s issuance of a declaratory order. The third
and final section concludes by surveying the substantially deferential standards that
courts apply in judicial review of declaratory orders.104
A.

Direct Review and Collateral Challenge

Generally speaking, declaratory orders are final agency action subject to judicial
review.105 As the Supreme Court explained in Bennett v. Spear, two conditions must be
met in order for agency action to qualify as “final” and subject to judicial review.106 First,
the action “must not be of a merely tentative or interlocutory nature,”107 but rather “must
mark the ‘consummation’ of the agency’s decisionmaking process.” 108 Second, the
agency’s “action must be one by which ‘rights or obligations have been determined,’ or
from which ‘legal consequences will flow.’”109 As the case law demonstrates, this test is
usually satisfied by an agency’s issuance of a declaratory order.110 That result is

102 See infra at Part II.A.
103 See infra at Part II.B.
104 See infra at Part II.C.
105 See 5 U.S.C. § 704; see, e.g., Weinberger, 412 U.S. at 627 (holding that a declaratory order is judicially

reviewable under the APA (citing Frozen Foods Express v. United States, 351 U.S. 40 (1956))).
106 520 U.S. 154 (1997).
107 Bennett, 520 U.S. at 178; see also Intercity Transp. Co. v. United States, 737 F.2d 103, 106 (D.C. Cir. 1984)
(holding that an ICC declaratory order was final agency action subject to judicial review).
108 Bennett, 520 U.S. at 177-78 (quoting Chicago & S. Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103,
113 (1948)).
109 Bennett, 520 U.S. at 178 (quoting Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget
Transatlantic, 400 U.S. 62, 71 (1970)).
110 See, e.g., Central Freight Lines, 899 F.2d at 418 (“[B]ecause the ICC’s order both settles rights and touches
vital interests of carriers, this court has jurisdiction to review the order.”); W. Coast Truck Lines, 893 F.2d at
233-234 (holding that an ICC declaratory order was final agency action subject to judicial review). There
have been rare instances in which courts have held declaratory orders unreviewable. See infra at Part II.B.

18

Bremer—Declaratory Orders

30-Oct-15

consistent with the intentions of the APA’s supporters, who viewed the availability of
judicial review as a necessary corollary of the binding legal effect of a declaratory order.111
An agency’s denial of a petition for a declaratory order or other refusal to institute
a declaratory proceeding also typically qualifies as final agency action subject to judicial
review.112 This principle, now well established, was initially questioned because 5 U.S.C.
§ 554(e) authorizes agencies to issue declaratory orders in their “sound discretion.”113
When first presented with the question, courts interpreted this language to mean that the
decision whether to issue a declaratory order was committed to agency discretion by law
and was therefore unreviewable.114 That approach, however, was much criticized and
did not survive.115 Today, courts read the statute’s reference to “sound discretion” as an
indication that an agency’s refusal to issue a declaratory order is, at least to some extent,
reviewable.116
Declaratory orders may also come before the courts collaterally, when a court is
called upon to interpret or apply an agency’s statute or regulation to resolve a dispute
between two private parties or review a state or local regulator’s enforcement action.117
In some cases, a declaratory order may become relevant to matters at issue in later
litigation between private parties, in which case the order may have preclusive effect.118
In other instances, a declaratory order may offer a useful procedural vehicle for an agency
to answer a question that first arises in litigation and is then referred to the agency by the
court. Such referrals are typically made under the doctrine of primary jurisdiction, a
prudential doctrine that allows a court to stay litigation and order the parties to seek
resolution of an issue from an administrative agency that has been vested with “special
competence” to address it.119 If a party is aggrieved by a declaratory order issued in

111 See AG’S REPORT, supra note 2, at 33.
112 See Intercity, 737 F.2d at 106-107.
113 5 U.S.C. § 554(e).
114 See United Gas Pipeline Co. v. Fed. Power Comm’n, 203 F.2d 78 (5th Cir. 1953); see also 5 U.S.C. § 701(a)(2)

(exempting from judicial review “agency action [that] is committed to agency discretion by law”).
115 See Intercity, 737 F.2d at 106-07; see, e.g., Schwartz, supra note 30, at 1248-49 (describing the holding of
United Gas Pipeline as “doubtful” and arguing that the phrase “sound discretion” “affects the question of
the scope, not that of the availability, of review”); Administrative Declaratory Orders, supra note 35, at 318-19
(expressing skepticism that “Congress intended ‘sound discretion’ to mean absolute discretion’” and
arguing that “[a]gency refusal to issue a declaratory order should be reviewable to determine whether it
transgresses the realm of ‘sound discretion’”).
116 5 U.S.C. § 554(e) (emphasis added); see Intercity, 737 F.2d at 106-08; see also id. at 106 n.4 (discussing the
legislative history). The scope of review is discussed below. See Part II.C.
117 See, e.g., Arctic Express, 87 F. Supp. 2d at 828; see also infra at Part III.A.
118 See B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293 (2015).
119 S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 750 (10th Cir. 2005) (quoting United
States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956)); see generally Note, Aaron J. Lockwood, The Primary
Jurisdiction Doctrine: Competing Standards of Appellate Review, 64 WASH. & LEE L. REV. 707 (2007) (discussing
the development, contours, and application of the primary jurisdiction doctrine). As Mr. Lockwood
explains, “[b]ecause it is applied infrequently, the shape of this doctrine is not fully defined. The circuit

19

Bremer—Declaratory Orders

30-Oct-15

response to such a judicial referral, that party must file for direct judicial review within
the applicable deadline for appeal. If it fails to so challenge the order, the referring court
will ordinarily refuse to entertain a collateral challenge to the agency’s decision.120 To
put it another way, the parties to a declaratory order, as well as a court called upon to
adjudicate related claims, is bound by an agency’s declaratory order once the time for
direct appeal of that order has expired.121
B.

Barriers to Judicial Review of Declaratory Orders

Although it is well established that the case and controversy requirement of Article
III does not apply to administrative agencies, this constitutional limitation on the judicial
power occasionally prevents judicial review of declaratory orders or agency refusals to
grant requests for declaratory relief.122 Most of these barriers arise because the scope of
agency authority under 5 U.S.C. § 554(e) is broader than the scope of the courts’ authority
under Article III. The difficulty is grounded in the APA’s grant of authority to agencies
to issue declaratory orders to “resolve uncertainty” in the absence of an actual

courts employ differing conceptions of primary jurisdiction, utilize different factors in their analysis, and
apply different standards of review.” Lockwood, 64 WASH. & LEE L. REV. at 708. In the caselaw related to
declaratory orders, the courts loosely refer to an agency’s “primary jurisdiction” without making any
referral, often as a way of explaining why it was appropriate for an agency to address a particular issue
through a previously issued declaratory order. See, e.g., Ill. Terminal R.R. Co. v. ICC, 671 F.2d 1214, 1216
(8th Cir. 1982) (explaining that “[t]he ICC acted properly” in issuing the declaratory order appealed from
because “courts have long recognized that interpretation of terms of art is within the special province or
primary jurisdiction of the ICC and therefore should, in the first instance, be decided by the ICC”). This
appears particularly common in cases involving the ICC, perhaps because the primary jurisdiction
“doctrine arises from a series of Supreme Court cases addressing the [ICC].” Lockwood, 64 WASH. & LEE
L. REV. at 710.
120 See Boston & Maine Corp. v. Town of Ayer, 191 F. Supp. 2d 257, 261-62 (D. Mass. 2002), reversed on other
grounds, Boston & Maine Corp. v. Town of Ayer, 330 F.3d 12 (1st Cir. 2003); but see Frozen Food Express v.
United States, 351 U.S. 40 (1956) (holding that an ICC declaratory order was judicially reviewable in district
court action filed by a plaintiff “who was not party to the administrative proceeding”).
121 See, e.g., W. Coast Truck Lines, 893 F.2d at 234 (holding that until a declaratory order “was reviewed by
an appellate court, the parties were bound by the [agency’s] determination” and since the parties “did not
file a notice of appeal from the [agency’s] order . . . this court is barred from reviewing [its] merits”); Boston
& Maine, 191 F. Supp. 2d at 261-62 (“‘If the aggrieved party fails to challenge the [agency] decision within
the statutory period, the [agency] decision becomes final and binding upon the referring court.’” (quoting
Locust Cartage Co., Inc. v. Transamerican Freight Lines, Inc., 430 F.2d 334, 341 (1st Cir. 1970))).
122 E.g., Central Freight Lines, 899 F.2d at 420-21 (“It is . . . well established that the case or controversy
requirement of Article III ‘does not restrict an agency’s authority to issue declaratory rulings.’” (quoting
Texas, 866 F.2d at 1551)); see also Tennessee Gas Pipeline Co. v. Fed. Power Comm’n, 606 F.2d 1373, 1380
(D.C. Cir. 1979) (“The subject matter of agencies’ jurisdiction naturally is not confined to cases or
controversies inasmuch as agencies are creatures of article I.”). The sponsors of section 5(d) of the APA
noted that agencies would “be as free to act irrespective of the technical rules of case or controversy as
courts are.” McCarran, Administrative Procedure Act—Legislative History, S. DOC. NO. 248, 79th Cong., 2d
Sess. 204 (1946).

20

Bremer—Declaratory Orders

30-Oct-15

controversy between adverse parties.123 Indeed, the core purpose of the administrative
declaratory order—to provide binding guidance to regulated parties before they have
acted in peril of regulatory sanction—may be in some circumstances at odds with the
Constitution’s prohibition on the courts’ issuing advisory opinions.124 In other words, as
the cases discussed below reveal, administrative agencies have greater flexibility to issue
declaratory orders in circumstances in which the Article III requirements of justiciability
would not be satisfied.
Miller v. FCC provides a good example of how the disconnect between
administrative and judicial power may thwart judicial review of an administrative
declaratory order. In Miller, the Eleventh Circuit was called upon to review an FCC
declaratory ruling addressing the preemptive effect of Section 315(b) of the
Communications Act of 1934. Section 315(b) establishes the “lowest unit charge,” a
limitation on the amount that a political candidate may be charged for the broadcast of
campaign advertisements.125 In 1991, the FCC issued a declaratory ruling stating that
“any state cause of action dependent on any determination of the lowest unit charge
under Section 315(b) of the Communications Act . . . is preempted by federal law,” and
that “[t]he sole forum for adjudicating such matters shall be this Commission.” 126 The
FCC issued this declaratory ruling on its own motion and not in response to any petition
or other request for resolution of a specific controversy.127 On a petition for review, the
court held the case nonjusticiable because “[b]y asking this court to decide what another
court should do in a future case, petitioners are posing a hypothetical question, the
answer to which would be an advisory opinion” prohibited by Article III.128 The court
characterized the agency’s decision as an unreviewable “agency opinion,” thereby
suggesting that the justiciability problem was created by the agency’s mischaracterization

123 5 U.S.C. § 554(e); see also Coal. for a Healthy California v. FCC, 87 F.3d 383, 386 (9th Cir. 1996) (“[W]hile

the FCC might properly issue such a general declaration which does not settle an actual controversy
between adverse parties, this court cannot.”); Hickey, supra note 35, at 91 n.7 (noting that “the constitutional
limitation to ‘case and controversy’ . . . is not strictly imposed upon an administrative agency” and “[a]s a
matter of statutory interpretation, the only possible meaning that can be given to the words ‘remove
uncertainty’ is that Congress intended to expand the availability of declaratory relief beyond its application
to orthodox controversies”).
124 Compare AG’S REPORT, supra note 2, at 30 (discussing advisory function of declaratory orders); Pacifica
Found., 438 U.S. at 734-35 (“However appropriate it may be for an administrative agency to write broadly
in an adjudicatory proceeding, federal courts have never been empowered to issue advisory opinions.”).
In the Declaratory Judgment Act, Congress appears to have recognized this potential disconnect, by
expressly limiting a federal court to granting declaratory relief “[i]n a case of actual controversy within its
jurisdiction.” See 28 U.S.C. § 2201(a); see also Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 325 (1936)
(upholding the constitutionality of the Declaratory Judgement Act because, by its terms, “it does not
attempt to change the essential requisites for the exercise of judicial power.”).
125 Miller v. FCC, 66 F.3d 1140, 1141 (11th Cir. 1995).
126 Id. at 1143 (quoting 6 F.C.C.R. 7511 (1991)).
127 Id. at 1143, 1144.
128 Id. at 1145; see also id. at 1146 (“Consequently, we are prohibited from determining the propriety of the
FCC’s declaratory ruling given the abstract circumstances in which this issue is presented.”).

21

Bremer—Declaratory Orders

30-Oct-15

of its own action.129 The true source of the difficulty, however, was that the scope of the
FCC’s authority to issue the declaratory order was broader than the scope of the court’s
authority to review that action. This became evident when, in parallel litigation in which
the FCC’s declaratory ruling was relevant but not subject to direct review, the Ninth
Circuit rejected the Miller court’s characterization and held that the agency’s decision was
a properly issued declaratory order with binding legal effect.130 Perhaps the most
interesting point is that both courts were right—this particular agency decision was both
an unreviewable advisory opinion (from the perspective of the reviewing court) and a
binding declaratory order (from the perspective of the court called upon to apply agency
precedent in parallel litigation).
In other cases, the courts have perceived the problem as a lack of finality that
undermines the agency’s classification of its action as a declaratory order. For example,
in Miami v. Interstate Commerce Commission, the Fifth Circuit declined to review an ICC
order that was, in the court’s view, merely “styled” as a declaratory order.131 The
underlying dispute involved the City of Miami’s extended effort to acquire for use as a
public park a thirty-three acre facility owned by the Florida East Coast Railway.132 In
condemnation proceedings in state court, the railroad argued that the property was a
“line of railroad” that could be neither condemned nor abandoned “without ICC
approval issued in the form of a certificate of public convenience and necessity.” 133 The
state court rejected this argument, characterizing the property as a “spur” not subject to
the ICC’s jurisdiction, and approved the taking.134 The railroad responded by petitioning
the ICC for a declaration that the terminal and tracks at issue were a “line of railroad.”135
After seeking input from the city, the ICC issued the requested declaration and “ordered
its [administrative] proceedings ‘discontinued.’”136 On a petition for review filed by the
city, the Fifth Circuit held that the ICC’s declaratory order was nonfinal and
unreviewable because it neither determined rights or obligations nor produced any legal
consequences.137 The ICC’s order, explained the court, “neither permit[ted] nor
prohibit[ed] the abandonment of the [railroad’s] terminal.”138 The court therefore

129 Id. at 1144.
130 See Wilson, 87 F.3d at 397-98.
131 669 F.2d 219, 221 (5th Cir. 1982).
132 See id. at 220.
133 Id. at 220.
134 See id.
135 See id.

The railroad did not, however, seek a certificate of public convenience and necessity from the
ICC, perhaps to avoid issuance of the approval it had argued was a necessary pre-condition to
condemnation. See id.
136 Id. at 221.
137 Id. (quoting Port of Boston Marine Terminal Ass’n. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71
(1970)) (first alteration added).
138 Miami, 669 F.2d at 221

22

Bremer—Declaratory Orders

30-Oct-15

concluded that the order was “nothing more than an advisory ruling” not subject to
judicial review.139
The problem may also present itself as one of mootness pending appellate
review.140 An example of one such case is Radiofone, Inc. v. FCC, which involved a petition
for review of an FCC declaratory ruling that Auto Page, a company that provided radio
paging services, was not a common carrier.141 The Louisiana Public Service Commission
(LPSC) had determined that Auto Page was a radio common carrier operating unlawfully
without a certificate from the LPSC.142 Auto Page sought an injunction against the LPSC’s
cease and desist order in federal district court, and the court referred the matter to the
FCC on the grounds of primary jurisdiction.143 The FCC issued notice and requested
comments from interested parties before issuing a declaratory ruling in Auto Page’s
favor.144 Although Auto Page (perhaps unsurprisingly) did not file for review of the
order, several other commenters in the proceeding did. 145 While the D.C. Circuit’s
decision was pending, Auto Page went out of business. 146 The court held that the case
was moot as a result of this development, and it accordingly vacated the FCC’s order.147
Through vacatur, the court deprived the FCC’s order of its value as administrative
precedent.148
Finally, a more straightforward barrier to judicial review arises when a party that
lacks standing under Article III petitions a court for review of a declaratory order. On
this issue, Radiofone is again the primary judicial precedent. In that case, the judges were
unanimous as to the proper result, and then-Judge Scalia authored the majority opinion.
In a part of that opinion not joined by his two colleagues, Judge Scalia reasoned that Auto

139 Id. at 222.
140 E.g., Tennessee Gas, 606 F.2d at 1379 (“Judicial review of administrative action, like all exercises of the

federal judicial power, is circumscribed by the requirement that there be an actual controversy.
Accordingly, we have no jurisdiction over suits challenging administrative orders which are moot.”); see
Hollister Ranch, 759 F.2d at 902.
141 See 759 F.2d 936, 937 (D.C. Cir. 1985).
142 See id. at 937.
143 See id. at 937.
144 See id. 937-38.
145 See id. at 938. It seems obvious that Auto Page would have had no reason to seek judicial review of the
declaratory order that granted Auto Page the very relief it had requested. The identity of the litigants in
this case is important because it reveals that, although a declaratory order may bind only the named party,
other interested parties may still be able to seek judicial review of that order.
146 See id. at 937.
147 See id. at 938; see also Oregon v. FERC, 636 F.3d 1203 (9th Cir. 2011) (“In cases where intervening events
moot a petition for review of an agency order, the proper course is to vacate the underlying order.” (citing
A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 330-31 (1961))).
148 The only circumstances in which courts have vacated a declaratory order because of justiciability
problems appear to involve disputes that have become moot pending judicial review. Interestingly, when
other barriers to judicial review have been encountered (such as when a petitioner has failed to exhaust
administrative remedies), courts have left the agency’s declaratory order standing as precedent.

23

Bremer—Declaratory Orders

30-Oct-15

Page’s demise had deprived the petitioners of standing to challenge the FCC’s decision.
To have standing, he explained, a petitioners’ injury must “arise from the particular
activity which the agency adjudication has approved (here, the operation of Auto Page
as a private land mobile radio system) and not from the mere precedential effect of the
agency’s rationale.”149 A related barrier may arise when a party that would otherwise
have standing to challenge the agency’s action fails to exhaust its administrative remedies
before seeking judicial review of a declaratory order.150
C.

Standards of Review

The scope of judicial review on appeal from a declaratory order is limited: courts
will set aside an agency’s action only if it is arbitrary and capricious, an abuse of
discretion, or is based upon factual findings that are not supported by substantial
evidence.151
The narrow scope of review applies to most aspects of a declaratory order,
including the decision of whether to initiate the proceeding.152 The courts may also
enforce the APA’s modest requirement that agencies provide a brief statement of the
grounds for denying a petition for declaratory order.153 An agency’s considered and
plainly stated “judgment that its limited resources are better allocated to other areas” has
been held sufficient to meet the APA’s minimal requirements.154 It may similarly be
reasonable for an agency to “withhold declaratory relief in anticipation of a clearer
exposition of government policy” that is expected or planned to be forthcoming, or on
149 Radiofone, 759 F.2d at 939.
150 See, e.g., Richman Bros. Records, Inc. v. FCC, 124 F.3d 1302, 1303 (D.C. Cir. 1997) (dismissing a petition

for review of a declaratory order issued on delegated authority by the FCC’s Common Carrier Bureau
because the petitioner did not exhaust administrative remedies by filing an application for review by the
full Commission).
151 See 5 U.S.C. § 706(2)(A); Loveday v. FCC, 707 F.2d 1443, 1447-48 (D.C. Cir. 1983); see also Central Freight
Lines, 899 F.2d 413, 419 (“This court may set aside an agency’s adjudicatory ruling, such as a declaratory
order, only if the agency’s findings and conclusions are ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” (quoting 5 U.S.C. § 706(2)(A))).
152 5 U.S.C. § 706(2)(a); Intercity, 737 F.2d at 108; see also Aviators for Safe and Fairer Regulation, Inc. v. FAA,
221 F.3d 222, 231 (1st Cir. 2000) (“While the agency has discretion to refuse [a request for a declaratory]
ruling, that refusal is reviewable for abuse of discretion.”); Central Freight Lines, 899 F.2d at 418-19 (affirming
an agency decision to institute declaratory order proceeding because that decision was neither arbitrary
nor capricious). The D.C. Circuit has opined that “a policy of never instituting declaratory proceedings . .
. could well constitute an abuse of discretion.” Intercity, 737 F.2d at 110 n.12.
153 See 5 U.S.C. § 555(e). The Administrative Conference recently addressed this requirement in connection
with petitions for rulemaking. See generally Petitions for Rulemaking, supra note 5; see also Schwartz & Revesz,
supra note 5, at 17-20. The APA also requires agencies to respond to petitions in a “reasonable time,” see 5
U.S.C. § 555(b), and to give petitioners “prompt notice” when a petition is denied in whole or in part, id.
555(e).
154 Intercity, 737 F.2d at 108-10 & n.12; see also Climax Molybdenum, 703 F.2d at 453 (“The Commission may
reasonably choose to reserve its use of declaratory relief for special cases in order to conserve its
administrative resources.”).

24

Bremer—Declaratory Orders

30-Oct-15

the basis of the agency’s judgment that the petitioner’s circumstances demonstrate no
“special need” for a declaratory order.155 When a court affirms an agency’s decision not
to issue a declaratory order, it will not opine on what such an order should say if it were
to be issued.156
Courts generally give substantial deference to the legal interpretations that an
agency provides in a declaratory order.157 Such deference has been extended to an
agency’s interpretation of any legal document within that agency’s special competence,
including: the statute the agency is responsible for administering,158 the agency’s own
regulations,159 the terms of art that are used within the agency’s regulatory regime,160 and
certificates or other authorizations that the agency has itself issued.161 In addition, courts
generally defer to an agency’s jurisdictional determination.162 Courts have afforded
Chevron deference to declaratory orders issued through both formal and informal
adjudications.163 With respect to orders issued through informal proceedings, a basic
petitioning process that includes notice and the opportunity for comment has been
sufficient to warrant Chevron deference.164

155 Climax Molybdenum, 703 F.2d at 452, 453.
156 E.g., Coal. for a Healthy California, 87 F.3d at 385-86 (declining litigant’s invitation to offer advisory opinion

on appropriate content of declaratory order FCC declined to issue) ; see also id. at 385 n.3 (“Every reported
case we have found which examined whether an agency improperly refused to issue a declaratory order
only considered whether the order was improperly withheld, not what the order should have been.”).
157 See Clark-Cowlitz, 826 F.2d at 1086-92l.
158 See, e.g., Central Freight Lines, 899 F.2d at 423 (citing Chevron and noting that a court “must honor the
[agency’s] interpretation of its statute so long as that interpretation is a reasonable one”).
159 See, e.g., Loveday, 707 F.2d at 1459 (affirming FCC declaratory ruling and holding that “[t]he
Commission’s interpretation of its own regulations as applied in this case is reasonable and consistent with
section 317 of the Communications Act”). Some justices of the Supreme Court have recently expressed
serious and increasing doubt about the propriety of judicial deference to an agency’s interpretation of its
own regulations. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1341 (2013) (Scalia., J., concurring)
(“Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power.);
Talk Am., Inc. v. Michigan Bell Tel. Co., 131 S. Ct. 2254, 2266 (2011) (Scalia, J., concurring) (explaining why
he has “become increasingly doubtful” of Auer deference). If these were to become majority views, the
resulting doctrinal sea change would presumably apply to the declaratory orders context.
160 See, e.g., Ill. Terminal R.R., 671 F.2d at 1217 (“We also note that courts should defer to ICC interpretation
of technical terms.”).
161 See, e.g., Middlewest Motor Freight Bureau v. ICC, 867 F.2d 458 (8th Cir. 1989) (“We hold the issue is
clearly within the ICC’s jurisdiction in interpreting whether its certificate covers the transportation.”).
162 See City of Arlington, 133 S. Ct. at 1871 (2013); see also, e.g., N. C. Utils. Comm’n v. FCC, 537 F.2d 787, 794
(4th Cir. 1976) (holding that the FCC’s “declaratory statement of its primary authority over the
interconnection of terminal equipment with the national telephone network is a proper and reasonable
assertion of jurisdiction conferred by the [Communications] Act”).
163 See, e.g., City of Arlington, 133 S. Ct. at 1874-75(giving Chevron deference to a declaratory ruling issued by
the FCC through informal adjudication); Arctic Express, 87 F. Supp. 2d at 828 (“This Court finds that the
ICC . . . opinion, a formal adjudication, is entitled to Chevron deference.”).
164 See City of Chicago, 199 F.3d at 429. The court’s discussion does not make clear whether the basic noticeand-comment procedures used by the FCC were necessary, only that they were sufficient. See id. Part IV,

25

Bremer—Declaratory Orders

30-Oct-15

Judicial review of an agency’s application of controlling precedent, whether
judicial or administrative, is similarly limited. A court’s “task on review is not to decide
whether [it] would construe the precedents as the [agency] did, but whether the
[agency’s] construction is reasonable and whether it has explained any departures from
its past actions.”165 Thus, in one case, the Fifth Circuit upheld an ICC declaratory order
because the agency “followed its prior cases in reaching [its] determination, and it did
not unreasonably construe federal precedents. It reasonably distinguished cases that
might suggest a different result.”166 An agency is generally not bound to give preclusive
effect to an earlier federal or state court judgment if the issue arises out of a statute the
agency is charged with administering.167
Judicial review of an agency’s findings of fact is also limited. If the agency’s
declaratory order emerges from a formal adjudication and includes factual findings
grounded in the record, a court will review those findings for substantial evidence.168 If
the declaratory order is a product of an informal adjudication, the court will review the
agency’s factual findings under the deferential arbitrary or capricious standard. 169 If the
factual record is insufficient to support the agency’s action, a court may vacate the
declaratory order.170 This appears to be a fairly rare occurrence, perhaps because most
declaratory orders are based on uncontested or assumed facts.
III.

AGENCY USE OF DECLARATORY ORDERS

The historically minimal usage of declaratory orders by administrative agencies
continues today.171 Only five agencies have adopted procedural regulations governing
declaratory order proceedings: the FCC, the FERC, the FMC, the Maritime
Administration, and the National Labor Relations Board (NLRB). Of these, the FERC and
the FCC appear to have the most robust declaratory practices, while the FMC, the NLRB,
and the Maritime Administration issue declaratory orders relatively rarely. The STB also
regularly uses declaratory orders, although it has not adopted procedural regulations
governing the practice. Finally, there are a handful of other agencies that have
occasionally issued declaratory orders without having adopted procedural regulations

which explores in greater detail the procedures that agencies use in declaratory proceedings, suggests that
most meet the minimum degree of formality needed to secure Chevron deference.
165 Central Freight, 899 F.2d at 420-21 (citing Texas, 866 F.2d at 1556-57); see also Merchs. Fast Motor Lines, Inc.,
5 F.3d at 917 (same).
166 Central Freight, 899 F.2d at 423; see Pa. Pub. Util. Comm’n v. United States, 812 F.2d 8 (D.C. Cir. 1987).
167 See Brand X, 545 U.S. at 982-83; see also Am. Airlines, 202 F.2d at 799-801 (rejecting argument that the full
faith and credit statute, 28 U.S.C. § 1738, or common law preclusion doctrines required a federal agency to
give preclusive effect to a previously issued state court decision).
168 See 5 U.S.C. § 706(2)(E); Ill. Terminal R.R., 671 F.2d at 1216-17.
169 See 5 U.S.C. § 706(2)(A).
170 See Hollister Ranch, 759 F.2d at 92.
171 See supra at Part. I.C.

26

Bremer—Declaratory Orders

30-Oct-15

governing declaratory proceedings.172 Drawing on this experience, this Part considers
how agencies can best use declaratory orders to improve their adjudicative and
regulatory programs.
A.

Defining the Scope of Declaratory Practice

How should agencies use declaratory orders—in what circumstances and to
address what kinds of issues? The appropriate use of the declaratory order, as articulated
in the text of the APA and fleshed out through judicial precedent, agency experience, and
scholarly evaluation, provides a natural starting point. It provides the foundational
principle that an agency should use a declaratory order when it is necessary to provide
binding, non-coercive guidance to regulated parties in order to terminate an actual or
emerging controversy or to resolve uncertainty in the application of existing legal
requirements. What this general principle will mean to an individual agency depends on
that agency’s unique mission and context, including its statutory framework, the
particular needs of its adjudicative or regulatory regime, and the culture of the industry
it regulates or the community it serves. At the most basic level, the agency’s substantive
statutory authority will necessarily define the range of issues that it may address through
a declaratory order.173 The case law demonstrates, however, that there is a wide variety
of purposes for which an agency may properly use a declaratory order, including to: (1)
interpret the agency’s governing statute or own regulations; (2) define terms of art; (3)
clarify whether a matter falls within federal regulatory authority; or (4) address questions
of preemption.174 The device also offers a way for an agency to provide regulated parties
with advance notice of how the agency will apply existing regulations to new or novel
circumstances.175 Even in the absence of novelty, an agency can provide targeted

172 See, e.g., Food and Drug Admin., Final Determination Regarding Partially Hydrogenated Oils, 80 Fed.

Reg. 34,650, 34,656 (June 17, 2015) (“This final determination is a 5 U.S.C. 554(e) declaratory order regarding
the status of [Partially Hydrogenated Oils].”); Special Opportunities Fund, Inc.; Notice of Application, 78
Fed. Reg. 49,555, 49,555 (Aug. 14, 2013) (“Absent a request for a hearing that is granted by the [Securities
and Exchange] Commission, the Commission intends to issue an order under Section 554(e) of the APA
declaring that applicant’s proxy voting procedure does not satisfy Section 12(d)(1)(F) of the Act.”).
173 See, e.g., Ill. Terminal R.R., 671 F.2d at 1216 (“Of course, § 554(e) does not allow an agency to issue a
declaratory order on any subject matter; there must be some underlying authority.”); accord 5 U.S.C. § 558(b)
(“A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated
to the agency and as authorized by law.”).
174 See Ill. Terminal R.R., 671 F.2d at 1216; New York State Comm’n on Cable Television v. FCC, 669 F.2d 58
(2d Cir. 1982); N. C. Utils. Comm’n, 537 F.2d at 794; Ashland Oil, 421 F.2d at 18. In Recommendation 20101, Agency Procedures for Considering Preemption of State Law, the Administrative Conference urged agencies
to consider procedural reforms designed to improve agency compliance with Executive Order 13132, which
requires consultation with state and local governments in potentially preemptive rulemakings. See 76 Fed.
Reg. 81 (Jan. 3, 2011). Subject to the limitations imposed by the ex parte rules that apply in administrative
adjudications, see 5 U.S.C. § 554(d), this consultation may be easier in a declaratory order proceeding,
because the narrow and known factual context makes clear the identity of any affected state or local
authorities or interests.
175 See Aviators for Safe and Fairer Regulation, 221 F.3d at 231.

27

Bremer—Declaratory Orders

30-Oct-15

guidance to regulated parties by declaring how existing regulatory requirements apply
to a defined factual context.176
Looking beyond the agencies’ independent needs, the declaratory order is also an
excellent device for agencies to use to assist state or federal courts by answering questions
that are within an agency’s special competence but arise in litigation in which the agency
is not a party.177 In some cases, parties may seek a declaratory order from an
administrative agency at a court’s express direction or referral.178 In other cases, parties
may ask an agency to issue a declaratory order in contemplation of or during the course
of litigation, but without being so directed by a court.179 Courts have perceived no legal
impediment to such parallel administrative proceedings180 and may even stay a
proceeding pending the agency’s decision.181 Regardless of how an issue is raised before
the agency, its opinion may be very important to the litigation, even if it is not sufficient
to determine the outcome before the courts.182 If an agency finds that the meaning of its
governing statute, regulations, or other legal documents (such as permits or licenses) is
commonly at issue in litigation to which it is not a party, the agency should consider
creating a declaratory order procedure through which litigants can seek the agency’s
considered views. By doing so explicitly by regulation or through written guidance, the
agency can make clear to its regulated industry the circumstances in which it will look
favorably upon such petitions for declaratory order.
An agency can and should use its regulations to communicate and enforce its
preferred uses of declaratory orders. This may be especially effective if the agency’s
declaratory practice is focused on a petition-initiated process.183 In its regulations, the
agency can allow or even require regulated parties to request a declaratory order as a

176 See Pacifica Found., 438 U.S. at 733-34.
177 See supra notes 117-121 and accompanying text.
178 See Richman Bros. Records, 124 F.3d at 1303; see also Boston & Maine, 330 F.2d at 14, 15-17.

By statute,
Congress has expressly allowed for the courts to refer questions or issues to certain agencies, see, e.g., 28
U.S.C. § 1336(b) (governing judicial referral to the STB), but because such referral may have “significant
procedural consequences, a district court’s stay of an action to allow a parallel [agency] action to proceed
will not be treated as a referral . . . unless the district court clearly implies or explicitly states that it is
referring the case to the” agency, W. Coast Truck Lines, 893 F.2d at 231.
179 See, e.g., Am. Airlines, 202 F.3d at 795 (“At the urging of several of the parties, and while both the federal
and state actions were pending, DOT initiated the interpretative proceeding that is the subject of this
petition for review.”); Ashland Oil, 421 F.2d at 19 (“On November 15, 1967, after the initiation of the action
in the District Court, Phillips filed a petition with the Commission for a declaratory order.”).
180 See Ashland Oil, 421 F.2d at 21.
181 See, e.g., E. W. Resort Transp., LLC v. Sopkin, 371 F. Supp. 2d 1253 (D. Colo. 2005) (staying litigation
pending STB’s conclusion of declaratory proceeding on issue within agency’s primary jurisdiction).
182 See City of Chicago, 199 F.3d at 428-29.
183 As a purely descriptive matter, most of the agencies included in this study issue most if not all of their
declaratory orders in response to petitions and not sua sponte. See infra at Part IV.B.

28

Bremer—Declaratory Orders

30-Oct-15

means of obtaining particular types of guidance from the agency.184 This guidance need
not be confined to the agency’s procedural regulation(s), but can rather be integrated into
the appropriate provisions of the agency’s substantive regulations. This approach helps
regulated parties understand how the agency prefers to use declaratory orders, and may
thereby lend some order to the petitioning practice before the agency.185
The FERC is a good example of an agency that has a robust declaratory practice
that is well defined and controlled by regulation and written policy. In the FERC’s view,
declaratory orders are generally not an appropriate vehicle for broad pronouncements
on legal or policy issues, but are more typically used to address novel issues or provide
needed regulatory certainty with respect to narrow legal questions on defined facts.
From this perspective, a declaratory proceeding offers an early and more efficient route
for regulated parties to either (1) obtain certainty before they invest significant resources
in a project; and/or (2) pursue the potentially more expensive and involved route of a
tariff filing or complaint before the agency.
The FERC clearly communicates these broad principles and agency preferences to
its regulated industry in writing. For example, on the FERC’s website, the agency defines
a “Petition For Declaratory Order” as:
[A] petition requesting the issuance of an order or ruling on
jurisdictional issues where uncertainty, ambiguity, or
controversy exists. The petition may seek an interpretation of
a party's rights or obligations under contracts, statutes, rules,
regulations, or orders. Pleadings filed in the form of petitions
for declaratory orders which seek more than a mere
interpretive ruling (particularly those involving alleged rate
schedule violations) are treated, instead, as formal
complaints.186
Building on this, the FERC’s regulations provide essential detail by specifically
identifying the declaratory order as an appropriate procedural vehicle to:

184 See, e.g., 18 C.F.R. § 284.502 (providing that certain FERC applicants “must file a request for declaratory

order” (emphasis added)); 47 C.F.R. § 20.9(a)(14)(ii) (“Any interested party may seek to overcome the
presumption that a particular mobile radio service is a private mobile radio service by filing a petition for
declaratory ruling challenging a mobile service provider’s regulatory treatment as a private mobile radio
service.”).
185 This effort can be further supported if the agency provides guidance in its regulations regarding how a
petition should be filed and what information it should contain in order to ensure that the agency has all
the information it needs to efficiently process the petition. These matters are addressed in the discussion
of agency procedures in Part IV.
186
FERC, Application/Petition Definitions, https://elibrary.ferc.gov/idmws/help/Definitions/
Sub_Definitions/Submittal/Applicaiton_Petition_Definitions.htm.

29

Bremer—Declaratory Orders

30-Oct-15



Permit “[a] non-public utility [to] submit an open access transmission tariff
and a request for declaratory order that its voluntary transmission tariff
meets the requirements of Commission rulemaking proceedings
promulgating and amending the pro forma tariff.”187



Evaluate proposals to create or participate in Regional Transmission
Organizations.188



Consider “[a] public utility’s request for one or more incentive-based rate
treatments” before that utility files for such treatments under section 205 of
the Federal Power Act.189



Resolve questions “concerning the Commission’s jurisdiction over a
hydropower project under the Federal Power Act.”190



Consider requests for waiver of or exemption from certain regulatory
requirements,191 or to evaluate the effect of a material change in facts on a
previously granted waiver or exemption.192



Receive declarations of intent under section 23(b) of the Federal Power
Act.193

In addition, the FERC’s regulations in some cases facilitate the use of declaratory orders
to streamline subsequent, related proceedings by calling for certain such orders to affect
the applicable burden of proof.194 By explicitly integrating the declaratory device into its

187 18 C.F.R. § 35.28(e).

“Any submittal and request for declaratory order submitted by a non-public utility
will be provided an NJ (non-jurisdictional) docket designation.” Id. § 35.28(e)(i).
188 See id. § 35.34(d)(3).
189 Id. § 35.35(d).
190 Id. § 375.308(c)(5). More specifically, this provision delegates authority to the Director of the Office of
Energy Projects (or the Director’s designee) to “[t]ake appropriate action” on such petitions. Id.
191 See id. §§ 292.203(d)(2), 366.3(d), 366.4(b)(3), 366.4(c)(2), 366.5(b), 366.5(c), 366.7(b). Other agencies, such
as the FMC, do not use declaratory orders for this purpose, but instead have a separate process especially
designed for considering requests for regulatory exemptions. See 46 C.F.R. § 502.74.
192 See 18 C.F.R. §§ 366.4(d)(1)(i), 366.4(d)(2)(ii), 366.7(c)(1).
193 See id. § 385.207(b).
194 The FERC’s rules provide when a non-public utility successfully secures a declaratory order finding its
open access transmission tariff acceptable under the Commission’s rules, a “later applicant in a Federal
Power Act (FPA) section 211 or 211A proceeding against the non-public utility shall have the burden of
proof to show why service under the open access transmission tariff is not sufficient and why a section 211
or 211A order should be granted.” Id. § 35.28(e)(ii).

30

Bremer—Declaratory Orders

30-Oct-15

regulatory regime, the FERC has cultivated a well-defined, manageable declaratory
practice that appears to benefit both the agency and the regulated industry.195
The FCC is another agency that has defined by regulation the purposes for which
it uses declaratory proceedings. For example, the FCC’s regulations structure the
International Bureau’s use of declaratory rulings to approve foreign ownership in
common carriers under Section 310 of the Communications Act of 1934. 196 The
regulations also specify in detail the required contents of petitions filed for this purpose197
and identify routine terms and conditions to which the resulting rulings are subject.198
The International Bureau also uses declaratory rulings to respond to requests for
authorization to provide service in the U.S. using non-U.S. licensed satellites,199 while the
Consumer and Governmental Affairs Bureau uses them to evaluate the validity of
various restrictions on the reception of certain signals or services. 200 The FCC’s
regulations thus help to shape the agency’s declaratory practice by giving clear advice to
the regulated industry regarding the circumstances in which the agency views a petition
for declaratory ruling as the appropriate procedural vehicle.
An agency may also use its regulations or other written procedures and policies to
make clear to its regulated industry the limits that it will impose on its declaratory
practice. The FERC accomplishes this through its written guidance.201 The FMC provides
another good example. Its regulations establish declaratory order procedures, but state
explicitly that those procedures “must be invoked solely for the purpose of obtaining
declaratory rulings which will allow persons to act without peril upon their own view.”202
In its dispositions of petitions for declaratory order, the Commission has adhered to and

195 A quick survey of industry newsletters suggests that the FERC’s declaratory orders are effective in

communicating the agency’s policy positions and providing guidance to regulated parties. See, e.g.,
Troutman Sanders LLP, 2014—A Big Year for FERC Orders Addressing LNG Jurisdiction,
http://www.troutmansanders.com/files/Uploads/Documents/LNG%20FERC%20Rulings.pdf; James F.
Bowe, Jr., FERC Decision Rejects Oil Pipeline’s Petition for Declaratory Order Approving Contract Rates, Special
Prorationing Methodologies and Priority Access for Excess Capacity, King & Spalding Energy Newsletter (Apr.
2014), http://www.kslaw.com/library/newsletters/EnergyNewsletter/2014/April/article5.html.
196 See 47 C.F.R. §§ 1.990(a)(1) & (2).
197 See id. § 1.991.
198 See id. § 1.994.
199 See id. § 25.137.
200 See id. § 1.4000(e). Other FCC regulations specify the declaratory ruling as the appropriate procedural
vehicle for addressing other, specific kinds of issues. E.g., id. § 20.9(a)(14)(ii) (“Any interested party may
seek to overcome the presumption that a particular mobile radio service is a private mobile radio service
by filing a petition for declaratory ruling challenging a mobile service provider’s regulatory treatment as a
private mobile radio service.”); id. § 51.232(b) (“Any party seeking designation of a technology as a known
disturber should file a petition for declaratory ruling with the Commission seeking such designation,
pursuant to § 1.2 of this chapter.”).
201 See FERC Interpretative Order on Guidance, supra note 25.
202 46 C.F.R. § 502.75(b).

31

Bremer—Declaratory Orders

30-Oct-15

elaborated upon this statement of principle.203 The Commission has explained that, in its
view, “‘petitions for declaratory order, by their very nature concern potential violations
of law. In fact . . . a potential legal peril must be demonstrated before the Commission
will, under its rules, even entertain a petition for declaratory ruling.’”204 Additionally, in
practice, the FMC does not use declaratory orders to address matters that involve
contested facts205 or will be more appropriately resolved through other kinds of
proceedings.206 This latter limitation is evident in the FMC’s regulations, which provide
that “[c]ontroversies involving an allegation of violation by another person of statutes
administered by the Commission, for which coercive rulings such as payment of
reparation or cease-and-desist orders are sought are not proper subjects of petitions” for
declaratory order.207 Perhaps as a consequence of these clearly articulated policies, the
FMC receives relatively few petitions for declaratory order, and it denies many of the
petitions that it does receive.208
B.

Agency Decisions Analogous to Declaratory Orders

Some consideration of agency decisions that appear to be analogous to declaratory
orders or rulings may help to elucidate the circumstances in which agencies may be able

203 See, e.g., Petition of Olympus Growth Fund III, L.P. for Declaratory Order, Rulemaking or Other Relief,

31 S.R.R. 718, 723 (F.M.C. 2009) (explaining that a declaratory order “‘is intended to provide guidance to
persons who have not yet acted and who desire a legal ruling on a proposed future course of action’”
(quoting Petition of Evergreen Marine Corp. (Taiwan), Ltd. & Worldwide Logistics, Inc. for Declaratory
Order, 26 S.R.R. 605, 607 (F.M.C. 1991))).
204 Olympus Growth Fund, 31 S.R.R. at 723 (quoting Indep. Action on Freight Forwarder Comp., 23 S.R.R.
390, 395 (F.M.C. 1985)).
205 See, e.g., Comp. of Indep. Ocean Freight Forwarders, 19 S.R.R. 1741, 1742 (F.M.C. 1980) (“For a
declaratory judgment to issue, there must be a dispute which ‘calls, not for an advisory opinion upon a
hypothetical basis, but for an adjudication of present established facts.’” (quoting Ashcroft v. Mattis, 431
U.S. 171, 172 (F.M.C. 1977))). There is some tension between this aspect of the FMC’s practice and the
provision of its procedural regulations suggesting the possibility of permitting “discovery or an evidentiary
hearing” on a petition. See 46 C.F.R. §§ 502.75(c) & (e).
206 See, e.g., Phillip R. Consolo v. Flota Mercante Granco-Combiana, 7 F.M.C. 635, 640 (1963), available at
http://www.fmc.gov/assets/1/Page/vol07-Part4.pdf (explaining that an agency need not issue a
declaratory order where it appears the questions involved be determined in a pending administrative or
judicial proceeding, or where there is available some other statutory proceeding that will be more
appropriate or effective under the circumstances); see also AG’S MANUAL, supra note 53, at 60 (explaining
that “an agency need not issue [declaratory] orders where it appears that the questions involved will be
determined in a pending administrative or judicial proceeding or where there is available some other
statutory proceeding which will be more appropriate or effective under the circumstances”).
207 46 C.F.R. § 502.75(b).
208 In the petitioning context, a “denial” is an agency decision not to institute a declaratory proceeding or
issue a declaratory order. In contrast, an agency “grants” (in whole or in part) a petition when it responds
by issuing a declaratory order, even if the content or conclusion of the order is different from that which
the petitioner requested.

32

Bremer—Declaratory Orders

30-Oct-15

to make more productive use of the declaratory device.209 The somewhat recent judicial
approval of the issuance of declaratory orders through informal adjudicative processes
also raises the possibility that some agencies may already be issuing decisions that are, in
essence, declaratory orders, but which are called by some other name. One example is
the “declaratory ruling” used by the FCC. For many years, there was substantial
disagreement over whether these rulings were properly considered to be “declaratory
orders.”210 The courts’ acceptance of them as such has, however, terminated that
controversy, allowing other agencies and scholars to draw from the FCC’s declaratory
practice in understanding the possibilities and limitations of declaratory orders in
administrative adjudication. The FCC’s experience also highlights the need for agencies
to pay careful attention to determining and observing minimum procedural
requirements when issuing declaratory orders through informal adjudication. In City of
Arlington, the Fifth Circuit clearly signaled that it would have invalidated the FCC’s
declaratory order if the agency had not used basic notice-and-comment procedures.211
A possibly analogous device may be found among the various forms of guidance
that the IRS offers to taxpayers.212 The IRS has a sophisticated and somewhat complex
system of guidance that uses a number of different, complementary vehicles to explain
to taxpayers how the agency interprets and applies the U.S. tax code. A complete
description and analysis of this system is well beyond the scope of this study, but it may
be valuable to consider three of the primary guidance vehicles used by the agency:
regulations, revenue rulings, and letter rulings. The most formal of these are regulations,
which may be legislative or interpretative, but are in either event legally binding
statements of agency policy and legal interpretation that taxpayers may rely upon.213 At
the other end of the spectrum is the private letter ruling, the purpose of which is “to
provide taxpayers with definite and reliable determinations as to the tax treatment of
future transactions.”214 A “letter ruling” is defined as “a written statement issued to a
taxpayer by an Associate Chief Counsel Office of the Office of Chief Counsel or by the
Tax Exempt and Government Entities Division that interprets and applies the tax laws to

209 See Uncertain Tools, supra note 75, at 261. See Admin. Conf. of the U.S., Recommendation 70-2, SEC No-

Action Letters Under Section 4 of the Securities Act of 1933, https://www.acus.gov/sites/default/files/
documents/70-2-ss.no-FR.pdf.
210 See supra at notes 16, 76.
211 See City of Arlington, 668 F.3d at 243-44.
212 See generally Mitchell Rogovin & Donald L. Korb, The Four R’s Revisited: Regulations, Rulings, Reliance, and
Retroactivity in the 21st Century: A View from Within, 46 DUQ. L. REV. 323 (describing the various forms of
guidance provided by the IRS to taxpayers).
213 See id. at 326-30.
214 Id. at 346. Although it is not entirely clear, the letter ruling program may be what the General Counsel
of the Treasury Department proposed to create in 1938. See generally Oliphant, supra note 13. Another
device the IRS uses to provide certainty to taxpayers is the closing agreement, which is conceived as more
in the nature of a settlement, which is generally reached after a transaction has been consummated and
problems have been identified during examination. See Rogovin & Korb, supra note 212, at 349-50; see also
26 U.S.C. § 7121.

33

Bremer—Declaratory Orders

30-Oct-15

a specific set of facts” generally involving “transactions that have not been
consummated.”215 A letter ruling is not binding on the taxpayer, but it is generally
reliable because the retroactive effect of any revocation is strictly limited. 216 By statute,
letter rulings must be publicly available (with personally identifying information
redacted), but generally have no precedential value.217 Finally, revenue rulings are
“official interpretations by the Service, prepared in the Associate Chief Counsel Offices
and published in the Internal Revenue Bulletin” that “represent the conclusions of the
Service on the application of the law to the pivotal facts stated in the revenue ruling.”218
The facts used in revenue rulings are often drawn from letter rulings, but are stated in a
generalized way. Although revenue rulings “do not have the force and effect of”
regulations, those published “may be used as precedents.”219 In this respect, “[t]he
revenue ruling program is centered upon uniformity of interpretation, rather than on the
problem of the individual taxpayer.”220
Although letter rulings and revenue rulings each share many of the characteristics
of declaratory orders, neither is wholly analogous. For its part, the letter ruling is like a
declaratory order in that it is typically issued in response to an individual request for
guidance from a taxpayer, provides a generally reliable sense of how the agency will
apply the law to proffered facts, serves the purpose of addressing the taxpayer’s
uncertainty, and is made publicly available. But it is not legally binding, has no
precedential effect, and is not subject to judicial review. The revenue ruling is more
closely analogous to a declaratory order—it is more formal, may generate greater
certainty, and has precedential effect. But it is based on facts that are generalized, it binds
no individual taxpayer, and although “courts will often hold the Service to the position
expressed in the revenue ruling,” they do not consistently defer to them.221
This analysis is instructive primarily because it brings into further relief the
advantages of declaratory orders over other mechanisms of agency advice-giving. The
next section explores these advantages.

215 Rogovin & Korb, supra note 212, at 343.
216 Id. at 348.

See 26 U.S.C. § 6110(k)(3); Rogovin & Korb, supra note 212, at 347-48. A letter ruling will have
precedential effect only if the Secretary so provides by regulation, id., but “[t]he only regulations that come
close to allowing reliance are the penalty regulations under section 6662,” id. at 348. In 1976, out of concern
that private letter rulings were creating a body of secret law not available to all taxpayers, Congress
required the IRS to make the rulings available to the public. See id. at 347; 26 U.S.C. § 6110(h)(1). This
history is fascinating in its own right.
218 Rogovin & Korb, supra note 212, at 330.
219 Internal Revenue Bulletin, Bulletin No. 2015-1, Introduction (Jan. 2, 2015), http://www.irs.gov/pub/irsirbs/irb15-01.pdf.
220 Rogovin & Korb, supra note 212, at 331.
221 Id. at 336.
217

34

Bremer—Declaratory Orders
C.

30-Oct-15

Should Agencies Expand the Use of Declaratory Orders?

The declaratory order is a unique procedural device that offers valuable benefits
to both agencies and regulated parties. Although agencies may be understandably
reluctant to legally bind themselves, doing so may in some instances be the only way to
achieve the level of clarity and certainty that is necessary for a program to run smoothly
and effectively. The adjudicatory nature of the declaratory order offers a valuable
compromise here: it allows the agency to bind itself and regulated parties, but that
binding effect is limited by the facts stated in the order, and the agency is not prevented
from changing its legal conclusion or policy in a subsequent order. By providing
definitive guidance through a document of easily ascertainable legal effect, declaratory
orders may reduce or eliminate litigation.222 By using declaratory orders to address
narrow questions raised by specific and uncontested facts, an agency can precisely define
the legal issues it addresses and reserve related issues for future resolution, thereby
facilitating an incremental approach to the provision of regulatory guidance. The
resulting body of agency precedent will not only be useful to regulated and other
interested parties, but may also prove invaluable to the agency when it later decides to
conduct a rulemaking or other proceeding for formulating policy on a broader scale.
Other uses may be possible as well. For example, an agency that conducts mass
adjudication could use the declaratory order to promote uniformity by giving its own
adjudicators practical and detailed guidance regarding the proper application of the law
to commonly encountered factual circumstances.223
Three developments may encourage agencies to overcome their traditional
reluctance to use declaratory orders. First, it is now reasonably clear that agencies may
issue declaratory orders in informal adjudication. This development expands the
availability of the device and also reduces the cost and procedural burden of using
declaratory orders. Second, courts today are more willing to review guidance documents
and to question an agency’s characterization of its action as non-binding. The legal
concepts underlying this development are difficult and contested, and the relevant
judicial precedent is inconsistent and often unclear. Agencies may be able to avoid some
of the attendant litigation risk by using declaratory orders—a binding, but targeted form
of guidance—in lieu of other forms of non-binding, legislative guidance. Finally, new
programs and new challenges facing old programs may create opportunities to
beneficially expand the use of declaratory orders. For example, and as previously
suggested, the device may be particularly well suited to streamlining overwhelmed

222 Cf. id. at 331.
223 To the author’s knowledge, no agency currently uses declaratory orders in this manner.

But the method
appears to be wholly consistent with the law governing the appropriate confines of administrative
declarations.

35

Bremer—Declaratory Orders

30-Oct-15

adjudicatory programs by providing definitive guidance on the resolution of common
issues.
In light of the unique advantages of declaratory orders and these recent
developments, agencies should use declaratory orders more frequently. It may be
particularly appropriate for an agency to use a declaratory order when regulated parties
request or otherwise appear to require concrete guidance as to how the agency would
apply existing regulatory requirements to proposed or contemplated activities or to
emerging or concrete disputes among regulated parties or between a regulated party and
state or local government. Ordinarily, the facts regarding these activities should be
susceptible of accurate description, uncontested, and unlikely to change.224 Beyond these
most basic considerations, however, agencies should experiment with innovative uses of
declaratory orders to improve regulatory programs by providing binding and reliable
guidance.
IV.

AGENCY PROCEDURES IN DECLARATORY PROCEEDINGS

Once an agency has decided to use declaratory orders, it must design the
procedures it will observe in declaratory proceedings. Drawing on the procedures used
by those agencies that currently use declaratory orders, this Part suggests potential best
practices.
A.

Determining Minimum Procedural Requirements

Agencies can and do issue declaratory orders through both formal and informal
adjudicatory proceedings.225 When designing the procedures that it will observe in a
declaratory proceeding, an agency must begin by determining whether the matter is one
that must be adjudicated formally or informally. This is necessary to determine the
minimum procedures required by law.
If the agency anticipates issuing declaratory orders on matters that are required
by statute to be adjudicated under the APA’s formal adjudication provisions, those
provisions determine the minimum procedural requirements. The Supreme Court has
held, however, that even in this circumstance, an agency may generally issue a

224 See, e.g., CHARLES H. KOCH, 2 ADMINISTRATIVE LAW AND PRACTICE § 5:17, at 40 (3d ed.) (“Ordinarily

declaratory orders should be issued only where critical facts are clear and cannot be altered by subsequent
events.”); AG’S REPORT, supra note 2, at 32 (stating that declaratory orders should “be employed only in
situations where the critical facts can be explicitly stated, without possibility that subsequent events will
alter them”); Gellhorn, supra note 36, at 157 (arguing that “declaratory rulings should be reserved for cases
which reflect a real need for administrative guidance” and “are appropriate only when the fact situations
to which they relate can be described accurately and unequivocally”).
225 See supra at Part I.B.

36

Bremer—Declaratory Orders

30-Oct-15

declaratory order without completing a full hearing on the record.226 The agency’s
procedures must otherwise be in accord with the minimum requirements established by
the APA.227 This means, for example, that the agency must provide parties with adequate
notice of the proceeding228 and observe the APA’s separation of functions requirements229
and prohibitions on ex parte communications.230 Nonetheless, the ability to issue a
declaratory order prior to conducting a full hearing would appear to be a significant
advantage—it provides an efficient way for an agency to give regulated parties guidance
through a non-coercive, but legally binding order. This approach can provide the
regulatory certainty that some regulated parties need in order to carry out their business.
If the agency anticipates issuing declaratory orders on matters that are not
required by statute to be adjudicated under the APA (i.e., matters that may be adjudicated
informally), then it has substantial discretion to design the procedures it will use.231 With
the exception of a few provisions in Sections 555 and 558, the APA does not establish
procedures for informal adjudication.232 On judicial review of declaratory orders issued
through informal adjudication, however, the courts typically note, with apparent
approval, an agency’s use of basic notice-and-comment procedures.233 Indeed, some
courts have suggested that agencies must provide at least a basic form of notice and an
opportunity for comment.234 This minimal requirement should not be confused with the
notice-and-comment requirements of informal rulemaking under the APA. Under the
judicial gloss that has been applied to 5 U.S.C. § 553, agencies must meet a variety of
detailed requirements in informal rulemaking that are not evident simply from the text
of the statute. This includes, for example, the requirements of providing public access to
data the agency intends to rely upon and of responding to comments filed on the
proposed rule. Section 553 is not, however, applicable to adjudication.235 The minimum
procedural requirements for declaratory orders issued in informal adjudication

226 See Weinberger, 412 U.S. at 625-26. Nevertheless, an evidentiary hearing may be required if the matter

involves contested facts. See Alaska Airlines, Inc. v. CAB, 545 F.2d 194, 200 (D.C. Cir. 1976).
227 See 5 U.S.C. §§ 554, 556, 557.
228 See id. § 554(b).
229 See id. §§ 556(b), 557(b).
230 See id. § 557(d)(1); Am. Airlines, 202 F.2d at 798.
231 See Am. Airlines, 202 F.2d at 797.
232 See 5 U.S.C. §§ 555, 558; Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 655 (1990).
233 See, e.g., State Corp. Comm’n, 787 F.2d at 1428.
234 See Am. Airlines, 202 F.2d at 797; but see Radiofone, 759 F.2d at 940 n.4 (explaining that in informal
adjudication, the APA does not require an agency to give notice to other parties before issuing a declaratory
order requested by a single entity); cf. State Corp. Comm’n, 787 F.2d at 1428 (“The FCC’s preemption order
[issued as a declaratory ruling] enacted no new regime of rights and duties which would warrant the
procedural safeguards of formal rulemaking.” (citing Batterton v. Marshall, 648 F.2d 694, 705 n.58 (D.C.
Cir. 1980))).
235 See Am. Airlines, 202 F.2d at 797-98.

37

Bremer—Declaratory Orders

30-Oct-15

presumably should not include them and may therefore be best understood as “notice
and comment lite.”236
Procedural regulations governing declaratory proceedings need not be extensive,
and an agency’s adoption of them may offer significant benefits to both agencies and
regulated parties. Adopting procedures specifically tailored to declaratory proceedings,
even if those procedures are simple and concisely stated, communicates to the regulated
industry the agency’s preferences and policies regarding the proper uses of petitions for
declaratory order. This may help to prevent the filing of petitions that will not be well
received and may improve the quality of the petitions that are filed. Adopting
declaratory procedures need not be burdensome. Of the five agencies that currently have
such procedures, most of them devote only one, relatively brief provision to the matter,
relying upon other, more general provisions to fill in the details. For example, the FERC’s
Rule 207 (governing “Petitions”) provides, in relevant part, that “[a] person must file a
petition when seeking . . . [a] declaratory order or rule to terminate a controversy or
remove uncertainty.”237 The FERC then uses other procedures, which apply in other
kinds of proceedings as well, to process and decide on the petitions.238 Integrating
declaratory orders into an agency’s broader procedural framework in this manner is an
easy and efficient way of providing guidance to regulated parties regarding the
procedures for requesting a declaratory order.
Each agency that uses declaratory orders in administrative adjudication should
have procedures, embodied in a written and publicly available policy statement or
procedural rule, explaining how the agency initiates, conducts, and terminates
declaratory proceedings.
B.

Initiating the Proceeding
1.

Petitions for Declaratory Order: Required Contents

Agencies most often issue declaratory orders in response to petitions, and there
are techniques that an agency can use to improve the petitioning process for both the
agency and regulated parties.239 An agency may by regulation specify the required
contents of a petition for declaratory order, to ensure that the petition provides the agency

236 See infra at Parts III.B, C, & D; cf. Henry J. Friendly, “Some Kind of Hearing”, 123 U.

Penn. L. Rev. 1267
(1975) (exploring the minimum requirements of a basic yet acceptable hearing).
237 18 C.F.R. § 385.207(a)(2).
238 See, e.g., 18 C.F.R. § 2.1(a)(1)(xi)(D) (establishing the Commission’s policy of publishing notice of
initiation of various proceedings, including petitions for declaratory order, in the Federal Register).
239 See, e.g., 18 C.F.R. § 385.207(a)(2) (establishing the general rule that “[a] person must file a petition when
seeking . . . [a] declaratory order . . . to terminate a controversy or remove uncertainty”); 47 C.F.R. § 1.2
(providing that the FCC “may, in accordance with section 5(d) of the [APA], on motion or on its own motion
issue a declaratory ruling terminating a controversy or removing uncertainty”).

38

Bremer—Declaratory Orders

30-Oct-15

with the basic information required to make a decision. 240 For example, the Maritime
Administration’s regulations provide that declaratory order petitions “shall state clearly
and concisely the nature of the controversy or uncertainty, shall cite the statutory
authority involved, [and] shall include a complete statement of the facts and grounds
supporting the petition, together with a full disclosure of the petitioner’s interest.”241 The
FCC and the FERC similarly specify by regulation the required contents of a petition for
declaratory order.242 These requirements, like those specified in the FMC’s regulations,
may be applicable to all petitions for declaratory order, regardless of subject matter.243
The requirements may also be tailored to the subject matter of the petition, such as in the
case of the FCC’s regulations specifying the contents of petitions for declaratory ruling
on foreign ownership requirements.244 Either way, clearly specifying the necessary
contents of a petition helps petitioners understand what is required of them and also
ensures that the agency receives all the information it needs to act on petitions. This
streamlines the process for prospective petitioners and the agency alike. For these
reasons, agency procedures should specify the information that regulated parties should
include in a petition for declaratory order.
2.

Petitions for Declaratory Order: Filing Fees

As authorized by statute, an agency may charge a filing fee for petitions for
declaratory order.245 For example, the FMC charges a $241 filing fee for petitions for
declaratory order.246 The FERC’s filing fee, which is updated annually,247 is currently
$24,730.00.248 This fee is not imposed if the petition:
solely concerns the investigation, issuance, transfer, renewal,
revocation, and enforcement of licenses and permits for the

240 See, e.g., 18 C.F.R. §§ 35.34(d)(3)(i)-(iv), 35.34(d)(4) (specifying the information that must be included in

a petition for declaratory order approving a Regional Transmission Organization).
241 46 C.F.R. § 201.74.
242 The FERC’s general pleading requirements apply to petitions for declaratory order. See 18 C.F.R. §
385.203.
243 For example, the FMC’s regulations provide that “[p]etitions for the issuance [of a declaratory order]
must: state clearly and concisely the controversy or uncertainty; name the persons and cite the statutory
authority involved; include a complete statement of the facts and grounds prompting the petitions, together
with full disclosure of petitioner’s interest.” 46 C.F.R. § 502.75(a)(2).
244 See 47 C.F.R. §1.991.
245 See 18 C.F.R. § 385.207; see also 31 U.S.C. § 9701 (providing general authorization to the heads of agencies
to establish user fees by regulation). Congress has statutorily directed the IRS to charge a user fee for letter
rulings. Rogovin & Korb, supra note 212, at 347; see 26 U.S.C. § 7528. The Administrative Conference has
previously addressed the issue of administrative user fees. See Admin. Conf. of the U.S., Recommendation
87-4, User Fees, 52 Fed. Reg. 23,634 (June 24, 1987).
246 See 46 C.F.R. § 502.75(a)(3)
247 See 18 C.F.R. § 381.104; see, e.g., Annual Update of Filing Fees, 79 Fed. Reg. 17,024 (Mar. 27, 2014)
(providing an annual update of the FERC’s filing fees).
248 18 C.F.R. § 381.302.

39

Bremer—Declaratory Orders

30-Oct-15

construction, operation, and maintenance of dams, water
conduits, reservoirs, powerhouses, transmission lines, or
other works for the development and improvement of
navigation and for the development and utilization of power
across, along, from, or in navigable waters under Part I of the
Federal Power Act.249
A person claiming this exemption must file a petition for exemption in lieu of the fee and
must demonstrate that the exemption is applicable. 250 The FERC has also established
other kinds of waivers and exemptions that allow petitioners to avoid the filing fee in
appropriate circumstances.251 At a broader level, the FERC’s filing fee for petitions for
declaratory order is calculated within the context of its broader financing structure. As a
zero-cost agency, the FERC is obligated to recoup the amount of its congressional
appropriation through fees and charges and to return that amount to the U.S. Treasury.252
Overall, the FERC’s fees and charges reflect the agency’s considered policy judgment as
to the most “fair and equitable” way to recoup its overall appropriation and is also based
on the cost of the staff time and other resources that each activity requires.253 In addition,
the agency’s regulated industry primarily consists of large energy companies that are able
to pay the agency’s fees and charges as an ordinary cost of business. The FERC’s
apparently substantial filing fee for petitions for declaratory order may thus be
reasonable and appropriate when considered within its broader context.
Agencies that charge filing fees for petitions for declaratory order should ensure
that the fees are reasonable in the context of the agency’s broader fee structure and should
also provide appropriate waivers and exemptions. This approach may help to strike the
right balance between competing considerations. On one hand, these user fees may help
to defray the costs of a robust declaratory practice and may deter the filing of frivolous
petitions. On the other hand, it is important not to set the fee so high that it deters
meritorious or otherwise appropriate petitions or conveys an advantage to some parties
at the expense of others. Carefully tailored exemptions can help to address these
concerns.

249 Id. § 381.302(b).
250 Id. § 381.302(c).
251 See id. §§ 381.106, 381.108.
252 See Omnibus Reconciliation Act of 1986, Pub. L. 99-509, § 3401, 100 Stat. 1874, 1890-91 (1986), codified at

42 U.S.C. § 7178; see also Report of the FERC Administration Committee, 24 ENERGY L.J. 407, 407 (2003)
(describing the FERC as a “self-funded federal agency that recovers its expenditures through charges to the
entities it regulates”). For this reason, payment for the FERC’s fees is made directly to the Treasurer of the
United States. See 18 C.F.R. § 381.105.
253 See F.E.R.C. Order No. 641, Revision of Annual Charges Assessed to Public Utilities, 65 Fed. Reg. 65,757 (Nov.
2, 2000); see also 18 C.F.R. § 382.201

40

Bremer—Declaratory Orders
3.

30-Oct-15

Sua Sponte Declaratory Orders

An agency may also issue a declaratory order on its own motion in order to
terminate a controversy or remove uncertainty that has become apparent to it through its
day-to-day interactions with its regulated industry. In contrast to a petition-based
declaratory practice, this approach allows an agency to be more proactive and to assert
better control over its own agenda. For example, the FCC has on occasion issued a
declaratory ruling in conjunction with or shortly after it has published a final rule, in
order to provide fact-bound guidance as to how the new rule will apply.254 The FDA has
likewise issued declaratory orders on its own motion (after providing an opportunity for
comment on a proposed order) in response to new or emerging scientific information that
affects the application of existing regulatory requirements.255 Such uses of declaratory
orders allow an agency to act on information that may be uniquely available to it,
providing beneficial guidance to regulated parties without unexpected costs or
interference with the agency’s ability to set its own agenda. This more proactive use of
declaratory orders may be useful in other circumstances as well. For example, an agency
that adjudicates large numbers of claims may be able to streamline its process by using
declaratory orders issued sua sponte to conclusively resolve issues that commonly arise
in individual adjudications. Agencies should consider opportunities to improve
regulatory and adjudicatory programs through more proactive, sua sponte issuance of
declaratory orders.
C.

Giving Notice and Collecting Information

All of the agencies included in this study give some form of generalized notice to
the public and interested persons when a petition for declaratory order is filed, either
through the Federal Register or on the agency’s own website. For example, the FERC’s
policy, stated explicitly in its procedural regulations, is to inform the public and other
interested parties of an application for a declaratory order via a notice published in the
Federal Register.256 The FMC’s regulations similarly provide that “[a] notice of filing of
any petition which meets the requirements of this section must be published in the Federal

254 See Fed. Commc’ns Comm’n, Report and Order on Remand, Declaratory Ruling, and Order, In the

Matter of Protecting and Promoting the Open Internet, FCC 15-24 (March 12, 2015), available at
http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0312/FCC-15-24A1.pdf.
255 See Final Determination Regarding Partially Hydrogenated Oils, 80 Fed. Reg. 34,650, 34,656 (June 17,
2015).
256 See 18 C.F.R. § 2.1(a)(1)(xi)(D); see, e.g., Navigator BSG Transportation & Storage, LLC; Notice of Petition
for Declaratory Order, 80 Fed. Reg. 26,245 (May 7, 2015) (providing notice of an application for declaratory
order); Primary Power, LLC; Notice of Filing, 74 Fed. Reg. 61,146 (Nov. 23, 2009) (same). In some instances,
the FERC requires that petitioners “must include [with their petition for declaratory order] a form of notice
suitable for publication in the Federal Register.” 18 C.F.R. §§ 366.4(b)(3), 366.4(c)(2), 366.7(b). The FERC’s
rules see to allow for the possibility that the Secretary of the Commission may exercise his or her discretion
to deviate from the general policy of providing notice of an application for declaratory order in the Federal
Register. See id. § 2.1(a).

41

Bremer—Declaratory Orders

30-Oct-15

Register.”257 Historically, the ICC was known to publish notice of petitions for declaratory
order in the Federal Register.258 The ICC’s modern successor, the STB, usually does not
publish notice of petitions for declaratory order in the Federal Register, but it does provide
such notice of all petitions via its own website.259 Although this is generally sufficient to
ensure that interested parties learn of a petition (in part through informal
communications among those in the STB’s regulated industry), the STB has on occasion
received complaints when interested parties did not timely learn about a proceeding.
Like the STB, the FCC most often provides notice of the filing of a petition for declaratory
ruling via its online docket system. The FCC’s regulations provide that the bureau or
office with which a petition is filed is responsible for providing notice, and notice
practices do vary among them.260 The regulations provide that the appropriate bureau
or office “should docket” a petition “within an existing proceeding” and “should seek
comment on the petition via public notice.”261 In keeping with this permissive language,
not all petitions for declaratory ruling are docketed or otherwise noticed. On the other
end of the spectrum, the FCC’s bureaus sometimes publish notice of a petition in the
Federal Register.262 An agency should give public notice, preferably via publication in the
Federal Register, when it receives a petition for declaratory order or intends to issue a
declaratory order on its own motion. To reduce costs, the notice can be brief, directing
parties to obtain more information via the agency’s website. Publication in the Federal
Register, however, makes it more likely that interested parties will learn of the agency’s
proceedings in a timely manner. Notices published on an agency’s website, in contrast,
are likely to reach only those sophisticated parties who consistently keep a close eye on
that targeted forum.
Most agencies also provide some opportunity for interested persons to submit
comments or other information on a petition. In some cases, the process is more
judicialized, reflecting the more individualized and adjudicatory nature of a declaratory
order. The FMC’s regulations, for example, provide that “[i]n the case of petitions

257 46 C.F.R. § 502.75.
258 See Arctic Express, 87 F. Supp. 2d at 828 (“In response to Dart’s petition [for declaratory order], the [ICC]

issued a public notice of the proceedings and invited comments.” (citing Dart Transit Co., Petition for
Declaratory Order—Leasing Regs., 57 Fed. Reg. 3215 (1992)).
259 See Surface Transp. Bd., e-Library, Decisions & Notices, http://www.stb.dot.gov/decisions/
readingroom.nsf/WebServiceDate?openform.
260 See 47 C.F.R. § 1.2(b).
261 See id.
262 See Wireless Telecommunications Bureau Seeks Comment on Petition for Declaratory Ruling by CTIAThe Wireless Association To Clarify Provisions of Section 332(c)(7)(B) To Ensure Timely Siting Review and
To Preempt Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as
Requiring a Variance, 73 Fed. Reg. 50,972 (Aug. 29, 2008). The Federal Register notice was important in City
of Arlington, where the Wireless Bureau’s decision to publish a notice and request for comments in the
Federal Register permitted the Fifth Circuit to hold that, even if the resulting order might have been more
properly characterized as a legislative rule, any procedural error was harmless. See City of Arlington, 668
F.3d at 242-43.

42

Bremer—Declaratory Orders

30-Oct-15

involving a matter limited to specifically named persons, participation by persons not
named therein will be permitted only upon grant of intervention by the Commission.”263
The FERC, which ordinarily uses declaratory orders to give individual parties advice
about how regulatory requirements will apply to their specific circumstances or
investment plans, also uses a process of intervention to identify the parties that will be
permitted to submit arguments and information in a declaratory proceeding.264 Thus,
after the initial notice in the Federal Register is provided, the FERC’s regulations provide
that “service of formal documents issued in a proceeding” is limited to “parties of record
or their attorneys.”265 If a petition raises issues of broader interest or applicability, it may
be appropriate for an agency to accept the submission of comments from a broader range
of persons. The FMC’s regulations expressly embrace this idea, providing that “[i]f the
controversy or uncertainty is one of general public interest, and not limited to specifically
named persons, opportunity for response will be given to all interested persons.”266 The
practice of other agencies is in accord.267 An agency should provide interested persons
with an opportunity to comment when it receives a petition for declaratory order or
intends to issue a declaratory order on its own motion. The agency should tailor this
opportunity according to the nature of the proceeding and the needs of potential
commenters. If the declaratory proceeding involves a narrow question of how existing
regulations would apply to an individual party’s proposed actions, it may be appropriate
to limit the submission of comments via an intervention process. On the other hand, if
the matter is one of broader interest or general policy, then a process more akin to noticeand-comment rulemaking may be more appropriate.
Agency procedures for collecting information otherwise tend to be relatively
informal, reflecting the discretionary, advisory nature of declaratory orders. As
previously discussed, courts have held that a declaratory order may lawfully issue under
the APA without the agency first conducting a hearing on the record.268 And, in keeping
with the intentions of the APA’s supporters, most agencies refuse to issue declaratory

263 46 C.F.R. § 502.75(f)(2); see also id. § 502.68 (establishing requirements for motions for leave to intervene).
264 See 18 C.F.R. § 385.214.

The FERC’s standard is permissive and in practice imposes little limitation on
participation in declaratory proceedings. See, e.g., id. § 385.214 (b)(2)(iii) (providing that “[a] motion to
intervene must . . . address the movant’s interest in sufficient detail to demonstrate that . . . [t]he movant’s
participation is in the public interest”).
265 18 C.F.R. § 385.211(a). The rule further provides that “the mailing or e-mailing of information copies
shall be confined to that which is required by the Commission’s rules and regulations, by courtesy in
response to written requests for copies, or by other considerations deemed valid by the Secretary in specific
instances.” Id. The FERC’s regulations also allow for the designation of corporate officials of regulated
entities to receive service of documents, including of petitions for declaratory order. See id. §§
385.2010(k)(1), 385.2010(k)(4).
266 46 C.F.R. § 502.75(f)(1).
267 See, e.g., City of Arlington, 668 F.3d at 241. Although participation in a declaratory proceeding may be
limited, the filings are often made publicly available through an agency’s online docketing system.
268 See supra at Part I.B.

43

Bremer—Declaratory Orders

30-Oct-15

orders on contested facts.269 Thus, for example, the STB typically does not engage in factfinding in declaratory proceedings,270 and the FCC has adhered to a “long standing policy
of refusing to issue interpretative rulings or advisory opinions when the critical facts are
not explicitly stated or there is a possibility that subsequent events will alter them.”271
Most agencies that use declaratory orders require petitioners and other interested parties
to provide all necessary factual information in their petitions or responses thereto.272
Although an agency may request additional information from a petitioner or other
interested party, the submission of evidence or additional briefing is otherwise generally
not permitted. This approach reinforces the seemingly appropriate expectation that the
parties should provide all the information necessary for an agency to provide the
requested, binding guidance.
D.

Deciding and Processing Administrative Appeals

The decision of whether to initiate a declaratory proceeding or issue a requested
declaratory order is within the agency’s “sound discretion.”273 Agencies also have the
discretion to permit the voluntary dismissal of a declaratory proceeding after it has been
initiated, but prior to issuance of a final declaratory order.274 When an agency receives a
petition for declaratory order, the APA imposes two minimal procedural requirements.
First, the agency must respond to the petition “within a reasonable time.”275 Second, if
the agency denies the petition, it must give “[p]rompt notice” of the decision and,
“[e]xcept in affirming a prior denial or when the denial is self-explanatory, the notice
shall be accompanied by a brief statement of the grounds for denial.”276 These are the
same procedural requirements that apply to agency decisions in response to other kinds
of requests, including petitions for rulemaking.277 All but one of the agencies included in
this study reported that they respond to all petitions for declaratory order and do so in
timely fashion. This approach is in accord with the APA’s requirements and should be
269 See, e.g., AG’S REPORT, supra note 2, at 32, 33.
270 See, e.g., Boston & Maine, 330 F.3d at 17 (explaining how STB declaratory order issued in response to

judicial referral “made clear that [the STB] had engaged in no factfinding . . ., but merely attempted to
provide general guidance to the district court”).
271 Pacifica Found., 438 U.S. at 734 (internal quotation marks omitted).
272 See, e.g., 46 C.F.R. § 502.75(c) (providing that petitions filed with the FMC “must be accompanied by the
complete factual and legal presentation of petitioner as to the desired resolution of the controversy or
uncertainty, or a detailed explanation why such can only be developed through discovery or evidentiary
hearing”); id. § 502.75(d) (“Responses to the petition must contain the complete factual presentation of the
responding party as to the desired resolution, or a detailed explanation why such can only be developed
through discovery or evidentiary hearing.”).
273 5 U.S.C. § 554(e).
274 See Climax Molybdenum, 703 F.2d at 451.
275 5 U.S.C. § 555(b); see also See FERC Interpretative Order on Guidance, supra note 25, at P20 (“Although
there is no statutory time frame to respond to a request for a declaratory order, the Commission attempts
to respond to all such requests in a timely manner.”).
276 5 U.S.C. § 555(e).
277 See Petitions for Rulemaking, supra note 5, at ¶¶ 10-13.

44

Bremer—Declaratory Orders

30-Oct-15

taken by all agencies. An agency that receives a petition for declaratory order should
respond to that petition within a reasonable period of time. If the agency denies the
petition, it should give prompt notice of its decision, accompanied by a brief explanation
of its reasons.
A final, important issue involves the availability of an agency’s declaratory
decisions, including dispositions of petitions and declaratory orders. All of the agencies
included in this study provide online access to declaratory decisions on their websites
(typically through an online library or via an online docketing system). In some
instances, agencies also publish declaratory decisions in the Federal Register. In addition,
declaratory decisions may be available through professional publications (which may in
turn be available through Westlaw or LexisNexis). Each of these methods meets minimal
legal requirements. The D.C. Circuit has found that, even if an agency’s “decisions are
not widely available,” their availability on the agency’s website provides “sufficient
notice for a well-represented entity” that is “intensely interested in the issue.”278 In order
to fulfill their guidance function and serve as useful agency precedent, it is important that
declaratory decisions be readily available to regulated parties. To that end, an agency
should make its declaratory decisions, including orders and other dispositions on
petitions, available to the public in a centralized and easy-to-find location on its website.
V.

CONCLUSION

The declaratory order is a unique and valuable tool that agencies historically have
underused. A product of adjudication, this procedural device allows an agency to dispel
uncertainty and to develop administrative policy incrementally through targeted, legally
binding, non-coercive guidance to regulated parties. The historical underuse of the
device may be attributed to a variety of factors, among which two are key. First, for many
decades after the APA’s passage, the prevailing view was that a declaratory order could
be used to address only those relatively few matters that are subject by statute to formal
adjudication. This view sharply limited the usefulness of the device—but the courts have
more recently discarded it. Second, agencies have consistently exhibited a preference for
informal, non-binding forms of guidance that are more shielded from judicial review than
are declaratory orders. In recent decades, however, courts have demonstrated a greater
willingness to scrutinize an agency’s characterization of a document as non-binding and
to review informal guidance. This development may have reduced the declaratory
order’s apparent comparative disadvantage.
In light of these developments, it appears that the time is ripe for agencies to
integrate the declaratory order more fully into their procedural arsenal. The experiences
of the relatively few agencies that have a robust declaratory practices suggests that, when
used appropriately, the declaratory order can improve the administration of both

278 Darrell Andrews Trucking, Inc. v. FMCSA, 296 F.3d 1120, 1131 n.9 (D.C. Cir. 2002).

45

Bremer—Declaratory Orders

30-Oct-15

regulatory and adjudicatory programs. It can allow an agency to save significant
resources by staying abreast of emerging developments, addressing issues before they
become problems, and preemptively adjudicating matters that might otherwise have to
be resolved through more costly enforcement mechanisms. Building on previous
experience, agencies should not hesitate to identify innovative new ways to use
declaratory orders. An agency that has been charged with administering a new program,
or which faces new challenges in an existing program, may be particularly well
positioned to innovate. Finally, past practice suggests a number of procedures and best
practices that may improve declaratory proceedings and reduce the costs of agency
innovation.

46