Opinion
No. 08-1308.
Filed On: February 13, 2009.
BEFORE: Ginsburg, Rogers, and Garland, Circuit Judges.
ORDER
Upon consideration of the motion to dismiss, the opposition thereto, and the reply, it is
ORDERED that the motion be granted. The July 24, 2008 letter is not final agency action subject to judicial review. See 28 U.S.C. § 2342(7); 49 U.S.C. § 20114(c); Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (holding that "the action must mark the consummation of the agency's decisionmaking process" and "must be one by which rights or obligations have been determined, or from which legal consequences will flow") (internal quotation marks omitted). A letter written by a mid-level agency official and being reviewed by the agency is not the "consummation" of the decisionmaking process, nor is it a definitive and binding statement that determines legal rights or obligations. See Devon Energy Corp. v. Kempthorne, ___ F.3d ___, 2008 W L 5335583, *9 (D.C. Cir. Dec. 23, 2008) ("At the very least, a definitive and binding statement on behalf of the agency must come from a source with the authority to bind the agency.").
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.