Biden v. Texas

If it's the application, which is how I read the briefing in this court to be, that's not final agency action.

If it's what Judge Van Dyke called application plus, which is the internal decision to submit the application, we think that's sort of ephemeral, and Biden against Texas says you can't do that either.

If it's just the decision to conduct these activities writ large, then I think Judge Van Dyke has a point, which is that decision was made in the 80s when the Air Force said, we need to dispose of these waste munitions on the island, and we're going to do it as long as Anderson Air Force Base is in operation.

Well, what

And in that case, isn't there a finality problem?

I don't think so, because this court has been clear that the possibility of revision of the agency's decision, that it might change its mind, is not itself enough to say that a decision where the agency reached the culmination of its decision-making process is non-final.

Here, yes, that possibility of revision might come because it's provoked by an outside entity, but I think that was also true in Biden v. Texas, where this court found final agency action when there was DHS secretary issued a memo saying, I am terminating immigration.

But the