Turning The Corner Post On Vacatur

Also, Judges Kacsmaryk and Ho seem vindicated on the statute of limitations to challenge mifepristone.

I apologize for the delay in writing about Corner Post. I started writing this post in July, and only now had a chance to finish it up before classes start next week.

I think Corner Post was probably the sleeper case of this term with regard to impact. Much ink has been spilled about Loper Bright, and the overruling of Chevron deference. Critically, though, Loper Bright only allows affected parties to challenge new regulations that perhaps deviate from an old regulation. But Corner Post tweaked when APA suits can be filed. Justice Barrett's majority opinion explains that a claim accrues "when the plaintiff is injured by final agency action."

An APA plaintiff does not have a complete and present cause of action until she suffers an injury from final agency action, so the statute of limitations does not begin to run until she is injured.

Regulations will generally injury regulated entities as soon as they go into effect–or perhaps even before that date. But under Corner Post, new regulated entities could claim, for the first time, an injury by some agency action that went into effect much earlier. And I'm sure industry groups are scanning through the federal register to find all sorts of old regulations that can now be challenged with the Corner Post statute of limitations. Moreover, to the extent that the regulations have "flip-flopped" over the years, those rules are no longer entitled to Chevron deference.  If you combine Loper Bright and Corner Post, it is a one-two punch to challenge old, politicized agency actions. That much is clear.

But is there also a one-two-three punch? Corner Post allows you to challenge old regulations, Loper Bright eliminates Chevron, and the remedy of "vacatur" erases the rule from the federal register. The Court is divided on this third issue. Justices Gorsuch and Thomas take the Sam Bray view that vacatur is not a permissible remedy under the APA. Justice Kavanaugh takes the Mila Sohoni view that vacatur is a permissible remedy under the APA. Justice Barrett's majority opinion, which was joined in full by Gorsuch, Thomas, and Kavanaugh, tables the vacatur question.

There is a lot packed into Footnote 2:

The Board leaves open the possibility that someone could bring an as-applied challenge to a rule when the agency relies on that rule in enforcement proceedings against that person, even if more than six years have passed since the rule's promulgation. But Corner Post, as a merchant rather than a payment network, is not regulated by Regulation II—so itwill never be the target of an enforcement action in which it could challenge that rule. JUSTICE KAVANAUGH asserts that "Corner Post can obtain relief in this case only because the APA authorizes vacatur of agency rules." Post, at 1 (concurring opinion). Whether the APA authorizes vacatur has been subject to thoughtful debate by Members of this Court. See, e.g., United States v. Texas, 599 U. S. 670, 693–702 (2023) (GORSUCH, J., concurring in judgment). We took this case only to decidehow §2401(a)'s statute of limitations applies to APA claims. We therefore assume without deciding that vacatur is available under the APA.

The Court continues to dabble with the as-applied/facial challenge distinction. We've seen this line come up in Rahimi and NetChoice. This is an area of some doctrinal confusion. I think the Court will have to bring some more clarity. I'll come back to this distinction later in when I get to Justice Kavanaugh's concurrence. Far more important, and timely, is how the Court treats the vacatur debate. Justice Barrett refers only to the disagreement as a "thoughtful debate." This might be the most law-professorry-thing that Justice Barrett has ever written. "Thoughtful" is the sort of word that law professors love to use. What does it mean? The Justices simply do not agree on this issue, so they will let it linger as long as possible.

I think complicating that debate is Justice Kavanaugh's concurrence, which I found persuasive than I had expected. He writes:

Recently, the Government has advanced a far-reaching argument that the APA does not allow vacatur. See Brief for Respondent 42; Brief for United States in United States  v. Texas, O. T. 2022, No. 22–58, pp. 40–44. Invoking a few law review articles, the Government contends that the APA's authorization to "set aside" agency action does not allow vacatur, but instead permits a court only to enjoin an agency from enforcing a rule against the plaintiff.

If the Government were correct on that point, Corner Post could not obtain any relief in this suit because, to reiterate,Corner Post is not regulated by the rule to begin with. And the APA would supply no remedy for most other unregulated but adversely affected parties who traditionally have brought, and regularly still bring, APAsuits challenging agency rules

In a world without vacatur, what would happen to an entity that is injured by a regulation, but is not directly regulated? For that entity, an as-applied challenge would not be possible. The only possible approach would be to bring a facial challenge, seeking the remedy of vacatur. If the APA does not permit this sort of suit, then countless cases have been wrongly decided. Kavanaugh cites several of these leading cases, including DHS v. Regents, Department of Commerce v. New York, and Whitman v. American Trucking as examples.

Justice Kavanaugh points out that the law professoriate has not addressed this issue:

Most of the recent academic and judicial discussion of this issue hasaddressed suits by regulated parties. That discussion has largely missed a major piece of the issue—suits by unregulated but adversely affected parties.

The footnote that launched a thousand law review articles, as it were.

Justice Kavanaugh flags, but does not decide the issue of remand-without-vacatur:

In some circumstances, usually when a court rules that an agencymust provide additional explanation for the challenged agency action ormust regulate some entity or activity more extensively, some courts have remanded to the agency without vacatur. Remand without vacatur is essentially a shorthand way of vacating a rule and staying the vacaturpending the agency's completion of an additional required action, such as providing additional explanation or issuing a new, more stringent rule. I do not address that practice here, which has been the subject of some debate. See Checkosky v. SEC, 23 F. 3d 452, 462–465 (CADC 1994)(Silberman, J.) (explaining the practice); see also id., at 493, n. 37 (Randolph, J.) (noting that courts and parties alternatively may avoid any "difficulties" associated with vacatur by "a stay of the mandate").

An evergreen debate.

And Justice Kavanaugh tip-toes away from the judicial supremacy point, and the issue of whether an as-applied judgment would bind non-parties:

In that respect, eliminating the vacatur remedy would delay relief for many regulated parties. That said, in light of vertical stare decisis, the consequences for regulated parties of eliminating vacatur would not be as severe as the consequences for unregulated parties. See Labrador v. Poe, 601 U. S. ___, ___ (2024) (KAVANAUGH, J., concurring in grant of stay) (slip op., at 8–9); cf. W. Baude & S. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153,183 (2023) (when the Supreme Court "holds a statute to be unconstitutional or a rule to be unlawful, it may be as good as vacated").

Kavanaugh had me till this point, but lost me. If there is no vacatur, there is no writ of erasure. Close enough only counts in horseshoes, not judicial review. Kavanaugh cites Jonathan Mitchell on this point, though I think Sam Bray has persuaded me that Mitchell's carveout for the APA should be revisited

As noted above, the text of the APA expressly authorizes federal courts to "set aside" agency action. 5 U. S. C. §706(2). "Unlike judicial reviewof statutes, in which courts enter judgments and decreesonly against litigants, the APA" and related statutory review provisions "go further by empowering the judiciary to act directly against the challenged agency action." J. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933,1012 (2018). The text of §706(2) directs federal courts to vacate agency actions in the same way that appellate courts vacate the judgments of trial courts.

This "thoughtful debate" will continue.

One final note on the majority opinion. Justice Barrett's opinion ends with at Ledbetter punt: if it's broke, let Congress fix it!

The dissent also raises a host of policy arguments masquerading as "matter[s] of congressional intent." Post, at 18–24. And it warns that today's opinion will "devastate the functioning of the Federal Government." Post, at 23. This claim is baffling—indeed, bizarre—in a case about a statute of limitations. The Solicitor General, whose mandate is to protect the interests of the Federal Government, comes nowhere close to suggesting that a plaintiff-centric interpretation of §2401(a) spells the end of the United States as we know it. Perhaps the dissent believes that the Code of Federal Regulations is full of substantively illegal regulations vulnerable to meritorious challenges; or perhaps it believes that meritless challenges will flood federal courts that are too incompetent to reject them. We have more confidence in both the Executive Branch and the Judiciary. But we do agree with the dissent on one point: "'[T]he ball is in Congress' court.'" Post, at 24 (quoting Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618, 661 (2007) (Ginsburg, J., dissenting)). Section 2401(a) is 75 years old. If it is a poor fit for modern APA litigation, the solution is for Congress to enact a distinct statute of limitations for the APA.

In the past, I was amenable to these sorts of inter-branch communications. I'll admit that I've soured on them over time. Congress is perfectly capable of reading judicial decisions. They don't need the Justices to give them homework. And does anyone really think there are votes to amend the APA? Come on. I am slightly more receptive to the claim here, especially where the dissent goes full Chicken Little. But I think the opinion should end with the judgment, and let the legislative chips fall where they may.

And one note on Justice Jackson's dissent, which she read from the bench. Footnote 9 cites Alliance for Hippocratic Medicine in what might be an unexpected fashion:

As such, it says nothing about the cause of action that sucha person might bring, nor does it establish that an injury is an element of the claim, as the majority mistakenly suggests.⁹

⁹The majority puts too much stock in the fact that §702 references an injury: That reference actually does no more than highlight the distinction between what constitutes a claim and who can bring that claim. See ante, at 4–5, and n. 1. This type of distinction is commonplace in many areas of our jurisprudence. Take, for example, the constitutional standing doctrine, which limits eligible plaintiffs to those who have suffered an injury in fact that is both traceable to the defendant's conduct and redressable in court. See FDA v. Alliance for Hippocratic Medicine, 602 U. S. 367, 380–385 (2024). Whether a particular plaintiff has standingto sue says nothing about the elements of the claim itself. See Haaland v. Brackeen, 599 U. S. 255, 291 (2023) ("We do not reach the merits of these claims because no party before the Court has standing to raise them"). The distinction between what a claim is and who can bring it applies with full force here. Section 702 codifies an injury requirement for bringing APA claims.

Jackson cites AHM again:

The majority's ruling makes legal challenges to decades-old agency decisions fair game, even though courts of appeals had previously applied §2401(a) to find untimely arange of belated APA challenges. For example, a lowercourt rejected an APA challenge to the Food and Drug Administration's approval of the abortion medication mifepristone that was brought more than two decades after therelevant agency action. See Alliance for Hippocratic Medicine v. FDA, 78 F. 4th 210, 242 (CA5 2023).

You may recall that in the District Court, Judge Kacsmaryk found that the plaintiffs had standing to challenge the FDA's long-ago approval of mifepristone. His reasoning sounded in Corner Post: true enough, the agency action happened more than six years ago, but the plaintiffs only felt the injury within the statute of limitations period. And, in light of Justice Kavanaugh's concurrence, the plaintiffs were entities that were not directly regulated by the FDA, but asserted a recent injury caused by the FDA's action. On appeal, Judge Ho agreed with Judge Kacsmaryk, even as the rest of the Fifth Circuit panel ruled that the older claims were SOL (there are two relevant acronyms here). If Justice Jackson is right, then Judges Kacsmaryk and Ho seem vindicated on the statute of limitations to challenge mifepristone.