Guest Post from Professor John Harrison: Vacatur's Missing Pedigree

I'm delighted to post a summary from Professor John Harrison of his forthcoming article Vacatur of Rules Under the Administrative Procedure Act. Professor Harrison's work was recently highlighted by Professor Amanda Frost at SCOTUSBlog as one side of a debate critical to United States v. Texas, which will be argued tomorrow. (The other side of the debate is ably represented by Professor Mila Sohoni, whose work Frost also highlights.) Here is Professor Harrison's post:

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As recently discussed on this blog, many lower federal courts take the position that they are authorized to give a remedy that vacates an agency regulation. Vacatur of a regulation deprives the regulation of binding legal force, as vacatur of a lower court's judgment by an appellate court deprives the lower court's judgment of binding force. Vacatur is distinct from an injunction against enforcement of a regulation, which operates on the defendant but not on the content of the law, and from a declaratory judgment, which conclusively states the parties' legal relations as they exist, without changing those relations. The standard justification for vacatur is that it is called for by section 706(2) of the APA, which directs reviewing courts to "hold unlawful and set aside" certain agency actions that it describes, such as agency action that is "contrary to constitutional right, power, privilege, or immunity." 5 U.S.C. § 706(2).

This post summarizes an article titled Vacatur of Rules Under the Administrative Procedure Act, forthcoming in the Yale Journal on Regulation Bulletin. The article discusses the historical pedigree of vacatur, considered as a remedy distinct from injunctions and declaratory judgments. From the adoption of the APA in 1946 to the pivotal case of Abbott Laboratoriesv. Gardner, 387 U.S. 136 (1967), vacatur was absent where it would have been present had legislators, judges, lawyers, and scholars been familiar with it. A remedy of vacatur, under that name or called setting aside, was unknown to the drafters of the APA and to experts in administrative law for two decades thereafter. The APA's drafters and later administrative law experts were familiar with injunctions against enforcement and declaratory judgments as remedies when a regulation was unlawful and invalid. Vacatur as the lower courts understand it today developed well after the APA was adopted.

The APA largely codified existing administrative law, and to some extent modified that law. If the drafters of the APA contemplated a remedy of vacatur, they believed either that vacatur already was recognized or that their legislation added vacatur to then-existing remedies. The committee reports on the APA show that the statute's drafters held neither of those beliefs.

Section 10(b) of the APA as originally adopted, now 5 U.S.C. § 703, sets out the forms of proceeding for judicial review. As the committee reports explain, section 10(b) codified the existing system of review, which consisted of special statutory review proceedings and the so-called common law forms of proceeding. See H.R. Rep. No. 79-1980, at 42 (1946). (The Senate report makes the same point. S. Rep. No. 79-752, at 26 (1945)). The common-law proceedings were lawsuits, like suits for injunctions, that were not specific to review of agencies and that courts had adapted to that function. The common-law proceedings were familiar to administrative lawyers in 1946 and to the APA's drafters, and included injunctive and declaratory proceedings, but not suits for a remedy such as vacatur as understood today. (The article and this post do not address the availability of a remedy like vacatur in special statutory review proceedings, a question resolved by the applicable statute.)

The committee reports also show that the drafters did not believe that they were creating a new remedy of vacatur or setting aside in section 10(e) of the APA as originally adopted, now 5 U.S.C. § 706. Rather than adding a new remedy, that provision dealt with a fundamental issue distinct from remedies.  As its heading indicated, section 10(b) addressed scope of review – the extent to which courts decide questions for themselves, rather than deferring to agencies. The grounds on which section 10(e) directed courts to hold unlawful and set aside agency action were legal grounds, reflecting the principle that courts decide questions of law for themselves. As the House committee report explained, Section 10(e) provided "that questions of law are for courts rather than agencies to decide in the last analysis" and listed "the several categories of questions of law." H.R. Rep. No. 79-1980, at 44 (1946). (The Senate report contains identical language. S. Rep. No. 79-752, at 28 (1945)).

In the period between the APA's adoption and Abbott Laboratories, a remedy like vacatur was absent from accounts of administrative-law remedies by two leading scholars. In 1958, Professor Kenneth Culp Davis published the first edition of a prominent treatise. Kenneth Culp Davis, Administrative Law Treatise (1958). Professor Davis described the system of remedies known in the 1950s, which included both the pre-APA system and any component the statute added. He discussed injunctive and declaratory relief, but did not mention a remedy like vacatur, whether under that name or called setting aside.

Professor Louis Jaffe, another leading scholar of administrative law, also was not familiar with a remedy of vacatur. In 1965, Jaffe published an influential book titled Judicial Control of Administrative Action. Jaffe classified remedies with the standard distinction between special statutory review and remedies created by "the combined action of the common law and statutes consolidating, simplifying, or in some other way reforming the common law remedies." Id. at 152 (abridged student edition). Discussing the common-law or non-statutory remedies, Jaffe listed "certiorari, mandamus, prohibition, habeas corpus, quo warranto (the so-called prerogative writs) damage suits, the bill in equity, and defense to enforcement proceedings," and added the declaratory judgment, created by modern statutes. Id. Jaffe's list closely resembles the list of proceedings for judicial review in 5 U.S.C. § 703, and does not include a remedy like vacatur.

In Abbott Laboratories in 1967, Abbott Laboratories and other regulated parties sought declaratory and injunctive relief with respect to an FDA regulation that, they argued, was unlawful. Abbott Laboratories was an anticipatory or pre-enforcement suit: the plaintiffs wanted to obtain a judicial determination of their rights without violating the regulation and risking sanctions in an enforcement proceeding. The Supreme Court decided that pre-enforcement proceedings for injunctive and declaratory relief brought by regulated parties are in general ripe.

Vacatur as courts understand it today is a pre-enforcement remedy available to regulated parties who argue that a regulation is unlawful. Although vacatur would have been highly relevant in Abbott Laboratories, that remedy does not appear in the opinions in that case. Abbott Laboratories is of fundamental importance today because of its holding concerning ripeness. Justice Harlan, writing for the Court, began his discussion of ripeness by explaining "The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy 'ripe' for judicial resolution." 387 U.S. at 148. Justice Harlan did not ask whether a suit for vacatur was ripe. Had he thought that section 706(2) called for vacatur, which is well suited to anticipatory proceedings, Justice Harlan would have discussed that remedy. He did not.

Justice Fortas dissented from the ripeness holding of Abbott Laboratories. He argued that courts "should not intervene in the administrative process" at the pre-enforcement stage to decide "whether the content of these regulations is within the statutory intendment." Gardner v. Toilet Goods Ass'n, Inc., 387 U.S. 167, 175-176 (1967) (Fortas, J., concurring, and dissenting as to Abbott Laboratories). The lower courts that embrace vacatur assume that section 706(2) directs courts to give the pre-enforcement remedy of vacatur for regulations that are not within the statutory intendment. If Justice Fortas had known about that reading of the APA, he would have addressed it, but he did not. A remedy of vacatur distinct from injunctive and declaratory relief was no more familiar to specialists in administrative law in 1967 than it had been in 1946.