but do not accord with HHS’s final position, thén HHS should remit the money. If, however, HHS intends to keep the money under its view .of the Transitional Reinsurance Program’s applicability, then such a decision would' be tantamount to the “consummation of the agency’s decision-making process .... by which rights-or obligations have been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 178, 117 S.Ct. 1154 (quotations omitted) (contrasting a “tentative recommendation” from “a final- and binding determination”); see also Air Brake Sys., Inc. v. Mineta, 357 F.3d 632, 638 (6th Cir.2004) (“The finality‘inquiry, we are told, is a ’flexible’ and ‘pragmatic’ one.” (quotation omitted)); cf. Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C.Cir.2000) (<HOLDING>). The Court finds it telling that state and
holding that courts will not defer to an agencys litigating position where it contradicts the agencys prior regulations rulings or administrative practice recognizing that the government  must demonstrate the reasonableness not only of its litigation position but also of the agencys actions   holding that agencys settled position upon which it will insist that state and local authorities comply with its understanding is renewable under the apa holding that even though an executive order mandating agency consideration of environmental justice concerns created no private right of action for an agencys failure to comply with that mandate the court would review the agencys action as an exercise of discretion under the apa and nepa holding governments position unreasonable where government advanced no legal authority for its position and applicable principle of law was long settled