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Legal Memorandum: Denial of a Permit Application

Issue: What constitutes ‘denial’ of a permit application that would entitle the applicant to official notification of the denial and enable it to seek reconsideration and judicial review?

Area of Law: Administrative Law, Administrative Law & Regulation (Federal and State)
Keywords: Denial of a permit application; Notice requirement; Judicial review
Jurisdiction: Federal
Cited Cases: 537 U.S. 71; 428 F.2d 1093
Cited Statutes: 5 U.S.C. § 555(e); 18 U.S.C § 925(c)
Date: 11/01/2009

The relevant APA provision mandates that “[p]rompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding.”  5 U.S.C. § 555(e) (emphasis added).  An agency’s failure to comply with this notice requirement may have the effect of tolling the running of the period for appeal.  See Turner v. Watt, 566 F. Supp. 87, 89 (D. Utah 1983). 

In Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093,1099 (D.C. Cir. 1970), the issue was not whether there was a “denial” sufficient to trigger the notice provision but rather whether there was the denial of a request sufficient to make the controversy “ripe” enough for judicial review.  Although the agency had refused to rule on the applicant’s request, the court construed the term “denial” broadly and held that in the circumstances the agency’s refusal to act amounted to a de facto denial.  Id. at 1099.

In more recent cases, most courts appear to construe “denial” more narrowly, rejecting a de facto interpretation.  Thus in Burtch v. Dep’t of the Treasury, 120 F.3d 1087, 1090 (9th Cir. 1997), Burtch, a convicted felon, brought an action under 18 U.S.C § 925(c) to have his firearm privileges restored.  The statute provides that an applicant can apply to the Secretary of the Treasury to have his privileges restored and that “[a]ny person whose application for relief from disabilities is denied by the […]

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