Gamboa v. Rubin

The majority does something truly remarkable: It holds that a regulation which was valid when adopted became invalid because it wasn’t adjusted for inflation. There are many problems with this ruling, the most fundamental of which is that we have no jurisdiction to consider the issue. No action of the agency caused this regulation to lose its validity, but judicial review under the Administrative Procedure Act extends only to agency “action.” See 5 U.S.C. § 702. The applicable substantive statute, moreover, gives us no standard against which to judge the legality of the agency’s non-action,…