Chenery Applied to Agency Reconsideration Denials: Agencies Cannot Swap “Ineligibility” for Merits-Based Rationales in Litigation

1. Introduction

In Doe v. HHS (5th Cir. Jan. 16, 2026), Dr. John Doe—a physician challenging an Adverse Action Report (“AAR”) lodged in the National Practitioner Data Bank—sought reconsideration from the U.S. Department of Health and Human Services (“HHS”) of a prior refusal to remove the AAR. HHS denied the request with a terse rationale: that Doe was “not eligible for additional administrative review.”

After Doe sued under the Administrative Procedure Act (“APA”) in the Eastern District of Texas, HHS defended on a different theory: that it denied reconsideration on the merits because Doe failed to identify new evidence sufficient to reopen. The district court dismissed the APA claim, treating the denial as effectively unreviewable because Doe had not presented new evidence.

The Fifth Circuit reversed and remanded, holding that HHS’s shift in rationale violated the Chenery principle: a reviewing court may assess agency action only on the grounds the agency itself invoked in the administrative record.

Key issues

Whether HHS may defend an agency decision on a litigation rationale different from the rationale stated in the final agency action.
Whether HHS’s stated “ineligibility” ground was consistent with its own guidance governing reconsideration.
What remedy is appropriate when Chenery is violated at the motion-to-dismiss stage in an APA case.

Parties

Plaintiff–Appellant: John Doe, M.D., Ph.D.
Defendant–Appellee: United States Department of Health and Human Services

2. Summary of the Opinion

The Fifth Circuit held that HHS’s litigation position—asserting a merits-based denial for lack of new evidence—could not be used to uphold an agency action that, on its face, denied relief because Doe was “not eligible” for reconsideration. Applying SEC v. Chenery Corp, the court ruled that it could not credit post hoc rationalizations offered by agency counsel.

The court further observed that HHS’s own guidance contemplated that upon a reconsideration request, the agency would either affirm the prior decision or issue a revised final decision—yet HHS instead declared Doe “not eligible” for reconsideration, a position the court said was “not true” under the guidance language. The Fifth Circuit therefore reversed the dismissal of the APA claim and remanded for further proceedings.

3. Analysis

A. Precedents Cited

1) SEC v. Chenery Corp, 332 U.S. 194 (1947)

The decision rests on Chenery’s “simple but fundamental rule” that a court must judge an agency action “solely by the grounds invoked by the agency.” In Doe v. HHS, that meant the court could not affirm (or sustain a dismissal premised on) a rationale HHS did not provide to Doe in the administrative record. The operative ground was “not eligible for additional administrative review,” not “we reviewed your new evidence and reject it on the merits.”

2) Calcutt v. FDIC, 598 U.S. 623 (2023) (per curiam)

The Fifth Circuit used Calcutt v. FDIC to reinforce the modern Supreme Court’s insistence that courts are “powerless” to affirm agency action by “substituting” a better rationale when the agency’s own reasoning is “inadequate or improper.” Here, the district court’s approach—accepting the litigation theory that the denial rested on lack of new evidence—was functionally a substitution of grounds inconsistent with Calcutt’s instruction.

3) Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962)

Burlington Truck Lines, Inc. v. United States supplies the more specific administrative-law admonition that appellate courts may not accept “post hoc rationalizations” and that an agency order must be upheld, if at all, on the basis articulated by the agency itself. The Fifth Circuit treated HHS’s merits-based defense on appeal as exactly the sort of post hoc rationalization Burlington forbids.

4) McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988)

The panel cited McLouth Steel Prods. Corp. v. Thomas in connection with the proposition that agencies must adhere to mandatory procedural language in their own guidance (or at least must supply a lawful explanation if they depart from it). The Fifth Circuit invoked this authority while noting HHS’s guidance describing what happens after a reconsideration request—suggesting HHS did not do what it promised it would do.

5) Prior litigation involving Doe and the AAR

The opinion situates the dispute against extensive prior proceedings where Doe tried to remove the AAR, including:

Doe v. Rogers, 139 F. Supp. 3d 120 (D.D.C. 2015) (“Doe I”)
[Doe] v. Rogers, 656 F. Supp. 3d 78 (D.D.C. 2023) (“Doe II”), aff’d sub nom. Doe v. Rodgers, No. 20-5297, 2023 U.S. App. LEXIS 3540 (D.C. Cir. Feb. 14, 2023) (“Doe III”), cert. denied, 144 S. Ct. 328 (2023)
[Doe] v. Peconic Bay Med. Ctr., No. 181 N.Y.S.3d 884 (N.Y. App. Div. 2023)
[Doe] v. Peconic Bay Medical Center et al., No. 2:10-cv-05588 (E.D.N.Y. filed Dec. 2, 2010)
[Doe] v. Peconic Bay Med. Ctr., 59 N.Y.S.3d 310 (N.Y. App. Div. 2017)

While these cases did not control the Chenery issue, they provide the procedural posture for why Doe sought reconsideration based on discovery materials and why HHS’s characterization of what it did on reconsideration mattered for APA review.

6) Judge Haynes’s pro se deference authorities

In a concurrence in part and dissent in part, Judge Haynes cited: Maleng v. Cook, 490 U.S. 488 (1989) and Haines v. Kerner, 404 U.S. 519 (1972), emphasizing that pro se filings are construed with deference. Those cases informed Judge Haynes’s proposed procedural remedy (a limited remand to allow fuller presentation to the district court), though the majority resolved the appeal on Chenery grounds as to the APA claim.

B. Legal Reasoning

1) The agency’s stated ground controls

The majority framed the case as one where its “analysis begins and ends” with the agency’s stated rationale. HHS’s final agency action said only that Doe was “not eligible for additional administrative review.” Under Chenery, that statement set the boundaries of judicial review: the court could not treat the decision as if it instead said “we considered your new evidence and deny reopening on the merits.”

2) A guidance mismatch underscored the inadequacy of the “ineligible” rationale

The court found the “not eligible” rationale inconsistent with HHS’s published guidance. The opinion quotes the National Practitioner Data Bank Guidebook as describing two outcomes after a reconsideration request: “Either the previous decision will be affirmed” or a “revised final decision will be issued.” The agency did neither; it issued a threshold ineligibility denial, contrary to the guidance’s described process. That mismatch mattered because it made the agency’s stated ground appear factually and procedurally defective, and it prevented the court from accepting HHS’s later attempt to recast the denial as merits-based.

3) The district court’s dismissal could not stand once the rationale shifted

The district court dismissed the APA claim on the understanding that Doe “failed to present any new evidence,” treating the denial of reconsideration as unreviewable on that basis. The Fifth Circuit held that approach effectively relied on a rationale not provided by the agency to the applicant—and, indeed, contradicted by the agency’s own written “not eligible” statement. Under Chenery and its progeny, that warranted reversal and remand.

4) Remedy: reversal and remand for further proceedings

The court did not decide the ultimate merits of Doe’s APA claim. It vacated the dismissal and remanded so that the case proceeds with the agency action judged on its stated ground (or for further agency explanation consistent with administrative-law requirements). The remedy reflects Chenery’s standard solution: the agency must supply the lawful, contemporaneous rationale in the record, not through later advocacy.

C. Impact

1) Litigation discipline for agencies: the record must match the defense

The decision reinforces in the Fifth Circuit that agencies cannot pivot in court from a threshold rationale (“ineligible”) to an alternative rationale (merits-based “no new evidence”) to avoid review or shore up a weak administrative explanation. For agency litigators, the case is a warning that the administrative decision letter and record must contain the grounds the government expects to defend.

2) Procedural regularity in reconsideration regimes

Although the opinion is brief, its reliance on the Guidebook’s mandatory-seeming description suggests heightened scrutiny when an agency’s reconsideration procedures are framed in “either/or” terms and the agency instead chooses a third option (ineligibility) without explanation. Future challengers may cite Doe v. HHS when an agency denies reconsideration using a rationale that does not track its published process.

3) Administrative law, not NPDB merits, drives the holding

The ruling does not establish substantive standards for removing AARs or interpreting the Health Care Quality Improvement Act of 1986 (“HCQIA”). Its precedential force lies in administrative law: courts in the Fifth Circuit will police explanation-shifting and require agencies to stand on what they said when they acted.

4) Interaction with pro se considerations (Judge Haynes’s view)

Judge Haynes would have affirmed the unappealed constitutional claims and preferred a limited remand to permit counsel-developed arguments to be aired first in the district court, invoking the deference owed to pro se litigants. Even though the majority did not adopt that procedural framing, the separate writing signals that, on remand, district courts may be receptive to fuller development where initial briefing was pro se—while still remaining bound by Chenery’s restriction on post hoc agency rationales.

4. Complex Concepts Simplified

Administrative Procedure Act (APA): A federal statute that allows courts to review many final agency actions to ensure the agency acted lawfully and provided a reasoned explanation.
Final agency action: The agency’s definitive position (often a letter or decision) that marks the end of the administrative process and is typically what courts review.
Chenery principle: Courts can uphold agency action only for the reasons the agency itself gave at the time it acted—not reasons invented later by lawyers in litigation.
Post hoc rationalization: A justification offered after the fact (in court) that is not found in the agency’s original decision.
National Practitioner Data Bank (NPDB): A federal repository that includes certain adverse reports about medical practitioners; hospitals and other entities consult it for credentialing and privileging decisions.
Adverse Action Report (AAR): A report submitted (here, by a hospital) reflecting an adverse professional action, potentially affecting a physician’s career opportunities.
Reconsideration vs. reopening: Agencies sometimes allow a party to ask the agency to revisit a prior decision; such requests often require “new evidence” or similar showings. The key in this case is that whatever the agency’s standard is, it must be the standard the agency states and applies in the record.

5. Conclusion

Doe v. HHS is a tightly focused administrative-law decision: when an agency denies reconsideration on the stated ground that the requester is “not eligible,” the agency cannot later defend the denial in court as a merits-based rejection for lack of new evidence. Anchored in SEC v. Chenery Corp and reinforced by Calcutt v. FDIC and Burlington Truck Lines, Inc. v. United States, the Fifth Circuit’s holding underscores that the administrative record—not later litigation strategy—controls judicial review. The case’s broader significance lies in its insistence on reason-giving discipline: agencies must say what they mean, and courts will not rescue inadequately explained decisions by accepting after-the-fact justifications.