Did John Roberts Just Put an End to Remand-Without-Vacatur?

Professor Christopher Walker explores a potential wrinkle in the DACA decision.


Amidst the various commentary on the Supreme Court's decision to prevent the Trump Administration from rescinding DACA in Dept. of Homeland Security v. Regents of the University of California, Professor Christopher Walker notes a potential implication of the Court's refusal to consider the justifications for the Trump Administration's actions offered in the Nielsen memo. Among other things, Chief Justice Roberts' opinion may have undercut the basis for the occasional practice of remand-without-vacatur—leaving a contested agency action in place while requiring the agency to provide additional explanation or analysis.

In an essay on the Notice & Comment blog, (which you should be be reading regularly if you care about administrative law), Professor Walker explains why the lawfulness of remand-without-vacatur could now be at issue.

As Ron Levin explores in the seminal article on the subject, remand without vacatur is a remedial innovation that has developed in the circuit courts over the last few decades, largely driven by the D.C. Circuit in the 1990s and 2000s. This remedial doctrine allows courts to declare an agency action arbitrary and capricious yet still keep it in place while the agency cures the procedural infirmities on remand. Once the agency has attempted to remedy those procedural errors, challengers can then bring the modified action back to the court for further judicial review. If the agency action returns to court, the agency's post-remand reasoning and actions are considered part of the administrative record for Chenery I purposes.

In 2014, the Administrative Conference of the United States documented that remand without vacatur has been used more than 70 times by the D.C. Circuit and recommended that, despite that the APA does not expressly provide the remedy, it "should continue to be recognized as within the court's equitable remedial authority." In making this recommendation, the Administrative Conference noted that "remand without vacatur is not without controversy. Some scholars argue that it can deprive litigants of relief from unlawful or inadequately reasoned agency decisions, reduce incentives to challenge improper or poorly reasoned agency behavior, promote judicial activism, and allow deviation from legislative directives. Critics have also suggested that it reduces pressure on agencies to comply with APA obligations and to respond to a judicial remand."

If this remedial device sounds familiar, that's because it is essentially the remedy Judge Bates utilized in this case, by staying his order vacating the DACA action for 90 days to allow DHS to remedy the procedural errors by providing additional reasons for the DACA rescission. . . .

If remand without vacatur were a permissible administrative law remedy, the Supreme Court here should have had no trouble considering the nonenforcement policy rationales included in the Nielsen memo as part and parcel of the agency's decision to rescind DACA. . . .

Does this mean that Chenery I, as applied in the DACA rescission case, prohibits remand without vacatur? Roberts certainly does not say so explicitly. Yet it is hard to escape the conclusion in how Chenery I was applied to bar the agency head's supplemental memo. It will be interesting to see how lower courts (and litigants) interpret Roberts' opinion when considering whether they can or should remand without vacatur in future cases.

Maybe courts will limit this rejection of remand without vacatur to the unique aspects of this case. After all, as Levin explains, remand without vacatur is most commonly used in the notice-and-comment rulemaking process, perhaps as a form of judicial modesty to not delay the substance of a regulation for perhaps years as the agency goes through another rulemaking process. Here, by contrast, the Supreme Court's remand with vacatur does not require the DHS to spend years to go through another rulemaking to achieve its purported substantive regulatory objectives. To the contrary, the DHS Secretary could issue a new DACA rescission memo hours or days after the Court's decision that addresses the two procedural flaws Roberts notes and perhaps also incorporates and expands on the policy rationales included in the Nielsen memo.

As Professor Walker notes, it will be interesting to see how lower courts interpret and apply this aspect of the Court's decision.

NEXT: Who Can Fire the US Attorney for the Southern District of New York?

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  1. Roberts will declare remand-without-vacatur a tax when appropriate to rule in favor of Democrats when His Royal Chief Justice sensibilities require.

  2. Roberts legislating from the bench. DACA is illegal, but we don’t like your reason for eliminating it. We dont need SCOTUS if they go with mob rule instead of the law. Roberts should study up on Roger Tanney.

    1. Taney wrote in his diary that he fully expected Lincoln to toss him into prison. Lincoln suspended the Writ of Habeas Corpus, which technically wasn’t in rebellion.

      1. I was talking about Dred Scott decision. https://www.britannica.com/event/Dred-Scott-decision “The Decision
        Chief Justice Roger Brooke Taney’s opinion for the court was arguably the worst he ever wrote. He ignored precedent, distorted history, imposed a rigid rather than a flexible construction on the Constitution, ignored specific grants of power in the Constitution, and tortured meanings out of other, more-obscure clauses. His logic on the citizenship issue was perhaps the most convoluted. “

  3. Expecting the government to justify its actions before taking them is unreasonable.

    1. They did justify it. You just don’t like the justification. What justification did supporters of same sex “marriage” put forth for it?

      1. If you had been paying attention they did not justify it at the time they took action. They attempted to justify it belatedly later in court and Chief Justice was abundantly clear as to why that was not OK.

        As for same sex marriage the case for justifying it has been done so much for so long that it is hard to know where to begin. Either you believe that the law and civil rights belong to everyone or you don’t. That should be enough but unfortunately for many it is not.

        1. Homosexuals always had the same civil rights as everyone else, to marry one person of the opposite sex. No one ever has successfully refuted that

          1. I like the fact Gays can get married now. Everyone has a right to be miserable. And if you’re a divorce lawyer, think of it as expanding the market.

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