Prof. John Harrison: Remand Without Vacatur Assumes that Unlawful Regulations Bind Until Courts Act

I'm delighted to report that Prof. John Harrison (University of Virginia) will be guest-blogging this week on the subject of Administrative Procedure Act remedies, and specifically the putative remedy of "remand without vacatur." APA remedies is a huge and recurring question, and it has new urgency after the Supreme Court's cert grant in United States v. Texas. This is his first post, and here are his second, third, fourth, and fifth posts.

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Thanks to a kind invitation from Sam Bray on behalf of the Volokh Conspiracy blog, I'll be doing a series of posts based on an article titled Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law. The article is forthcoming in the BYU Law Review, whose editors have graciously agreed to this preview. The current version is posted to SSRN.  (Thanks also to Volokh blogger Jonathan Adler for comments on the draft.)

The article argues that the important administrative law doctrine of remand without vacatur rests on a false premise. Courts that follow the doctrine assume that when they find that an agency action is unlawful, they have discretion whether to vacate the action, and thereby deprive the action of its binding legal force, or leave that force in place. If the reviewing court decides not to vacate, but instructs the agency to conduct further proceedings to repair the defects that made the action unlawful, it is said to remand without vacating. The most important applications of the doctrine, with which the article is primarily concerned, involve agency regulations that purport to impose duties on private parties. The doctrine has been embraced by most of the federal courts of appeals, and is a mainstay of D.C. Circuit administrative law practice. The Supreme Court has neither endorsed nor rejected it.

As applied to regulations that impose duties on private people, remand without vacatur rests on a mistaken assumption. Courts applying the doctrine assume that unlawful regulations are binding until displaced by a court. That is a mistake. Regulations that are unlawful, as that concept appears in section 706 of the APA, are in general invalid ab initio. They never become part of the body of governing law. For that reason, courts do not have the option of directing an agency to conduct further proceedings while an unlawful regulation remains in force.

This first post will briefly describe the doctrine of remand without vacatur as the courts understand it, then bring to the surface the doctrine's unexpressed and undefended premise: that unlawful regulations of private conduct are binding until displaced by a court.

As the courts that embrace remand without vacatur understand it, the doctrine is about remedies. Once a court finds a wrong, it must choose the remedy, and the court sometimes has discretion in doing so. Under the doctrine, unlawful regulations are treated as wrongfully binding regulated parties. The reviewing court must decide whether to remedy that wrong by vacating the regulation and so relieving parties from their obligations under it.

Scholarship about remand without vacatur treats the doctrine as resting on remedial discretion. In the leading article on the subject, Professor Ronald Levin argues that court have discretion to decide not to vacate unlawful regulation. "Vacation" at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L. J. 291 (2003). The assumption that vacatur of unlawful agency actions is a judicial remedy is built into the title of a major study that Stephanie Tatham conducted for the Administrative Conference of the United States. Stephanie J. Tatham, Administrative Conference of the United States, The Unusual Remedy of Remand Without Vacatur (2014).

Professor Levin's article responded to the leading judicial criticism of remand without vacatur. In a separate opinion in Checkosky v. SEC, 23 F. 3d 452 (D.C. Cir. 1994), Judge A. Raymond Randolph rejected the doctrine. Judge Randolph saw the question as one of remedy, and argued that the courts have no discretion. When a court finds that an agency action is unlawful, he maintained, section 706 of the APA requires that the action be set aside, that is, vacated. Id. at 491 (Randolph, J.).

Underlying the arguments for and against remand without vacatur is the assumption that reviewing courts face a remedial choice when they find that a regulation is unlawful. The choice is whether to vacate the regulation or leave it in place. That understanding rests on the further assumption that unlawful regulations are binding until displaced, even though they are unlawful.

A Ninth Circuit case under the Endangered Species Act illustrates the assumptions made by courts that embrace remand without vacatur. The Idaho Farm Bureau Federation sued the Secretary of the Interior in district court, challenging a Fish and Wildlife Service (FWS) decision that added the Bruneau Hot Springs Snail to the list of endangered species. Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392 (9th Cir. 1995).  The court of appeals found that the decision had been made without adequate disclosure of a study on which the agency relied. Id. at 1402-1404. The agency's action therefore was unlawful under section 706(2)(D) of the APA, which classifies as unlawful agency action taken "without observance of procedure required by law." Id. at 1404. Relying on Ninth Circuit precedent embracing remand without vacatur, the court of appeals decided that "equitable concerns weigh toward leaving the listing rule in place while FWS remedies its procedural error and considers anew whether to list the Springs Snail." Id. at 1406. In weighing the equities, the court explained that the public resources that had been put into studying the situation would be wasted if the listing was not in effect while the agency conducted further proceedings. Id. at 1405-1406. The court's reasoning rested on the assumption that private people would comply with the listing while the agency reconsidered, which rested on the assumption that they would be bound to do so because the court had decided not to vacate the agency's action.

The assumption that unlawful regulations are binding until displaced rests on an analogy between agencies and lower courts. Judicial decrees bind parties, even if they rest on error, until they are displaced by a court. An appellate court that concludes that the lower court's decree was erroneous often has the option of leaving the decree in place while the lower court conducts further proceedings. That remedial option is available because the appellate court's conclusion that the lower court erred does not imply that the lower court's decree does not bind the parties.

Unlawful regulations of private conduct, however, are in general void when adopted. In that respect, agency regulations are not like lower-court judgments, and judicial review of agencies is not like appellate review of one court by another. The next two posts defend that claim, which is the article's primary thesis.