What is the current state of the law on the doctrine of finality in the context of an action alleging that the US Department of Energy failed to act?

Courts have permitted jurisdiction under the limited exception to the finality doctrine only when there has been a genuine failure to act. This court has refused to allow plaintiffs to evade the finality requirement with complaints about the sufficiency of an agency action "dressed up as an agency's failure to act." Nevada v. Watkins, 939 F.2d 710, 714 n.11 (9th Cir. 1991) (denying jurisdiction on basis that agency had failed to act when there were merely deficiencies in energy guidelines rather than actual failure by Secretary to act).