No Other Adequate Judicial Remedy[index]
It can be argued that the issuance of an agency rule is itself "a final agency action." However, the United States Supreme Court has emphasized that federal court jurisdiction for challenges of "a final agency action" exists only if there is no other adequate judicial remedy. Is the issuance of the research misconduct rule by the OSI "a final agency action"? Assuming it is, is it the sort of rule that can be challenged by a suit for a declaration of invalidity? Yes it can, if there is no other adequate judicial remedy. Therefore, the question in the Abbs case is whether or not there is an alternative judicial remedy to Professor Abbs's suit. If there is, the federal courts don't even have jurisdiction to hear Professor Abbs's complaint. If not, Judge Crabb had jurisdiction to hold that the rule is invalid due to lack of notice and opportunity to comment.
Professor Abbs was challenging a rule governing the investigation of his conduct, not a rule governing the conduct itself. Since, as a practical matter, the outcome of the investigation was stymied by Judge Crabb's holding, there is good reason to avoid her result if possible so that the administrative process may run its course. However, Professor Abbs was not trying to derail the process by asking the court to decide that he did not commit misconduct. All he asked is that the court determine the ground rules for the OSI's investigation and, should it come to that, its proceedings.
The courts recognize a critical difference between challenging a rule of conduct that carries sanctions for its violation and a procedural rule that specifies what sanctions, and how, are applicable to (alleged) misconduct already committed. If the rule of conduct with sanctions cannot be challenged in advance of violating it, individuals subject to it are placed in a real dilemma: comply with a harmful rule that they believe is invalid, or go ahead and violate the rule at the risk of incurring the sanction if they guess wrong. In such a situation, the judicial remedy that comes after the sanction is imposed is inadequate, so the actor is entitled to a prior determination in a proceeding challenging the rule directly.
However, Professor Abbs was not claiming a right to misrepresent the source of his data. Either he did or he didn't, and the rule of conduct has or has not been violated. The question is only what procedures are to be used in the investigation and, if necessary, the proceedings. So Professor Abbs faces no dilemma. If the methods used by the OSI violate due process or the APA, then if and when a sanction is meted out, Professor Abbs can challenge it on grounds that his rights were violated. If he wins, he will be home free, regardless of the merits of the outcome. If the challenge fails, he will be no worse off than he would have been had be never brought this suit.
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