On Universal Vacatur, the Supreme Court, and the D.C. Circuit

Thoughts on recent oral argument exchanges on whether the Administrative Procedure Act contemplates (let alone requires) universal vacatur.

Over at the Yale Journal on Regulation's Notice & Comment blog I have a post commenting on recent exchanges during Supreme Court oral arguments concerning whether the Administrative Procedure Act requires nationwide vacatur when a court concludes an agency action is unlawful, and whether (as the Chief Justice suggested) the D.C. Circuit routinely provides nationwide relief when vacating agency rules.

The post begins:

During oral argument in Department of Education v. Brown, the second case concerning the Biden Administration's student loan forgiveness plan, the question arose whether it is proper for a single district or circuit court to impose a nationwide injunction against a federal policy where doing so is not necessary to provide complete relief to the parties before the court. While federal courts are empowered to "hold unlawful and set aside" agency action, Solicitor General Elizabeth Prelogar has argued that this does not necessarily mean that a successful challenge to an agency action in a lower court can or should result in a nationwide or universal vacatur of the agency rule or action at issue.

This discussion at oral argument was a reprise of SG Prelogar's argument in United States v. Texas, in which she pressed the position that when a lower court holds an agency action to be unlawful, it need not (indeed, should not) impose a nationwide vacatur. Relying on the work of UVA law professor John Harrison (see also here), Prelogar argued that "The APA did not create a novel remedy of universal vacatur." I think Prelogar (and Harrison) are correct here, but this is anything but a consensus view.

Several justices disagreed quite strongly with Prelogar's argument, with those justices who served on (or had been nominated to) the U.S. Court of Appeals for the D.C. Circuit voicing the loudest objections. The Chief Justice in particular was incredulous.

[Y]our position on vacatur, that sounded to me to be fairly radical and inconsistent with, for example, you know, with those of us who were on the D.C. Circuit, you know, five times before breakfast, that's what you do in an APA case. And all of a sudden you're telling us that, no, you can't vacate it, you do something different. Are you overturning that whole established practice under the APA?

I think the Chief Justice is wrong here. Let me explain why.

You can read the rest of the post here.

Comments

[Kazinski]

Well since its a long standing practice of the courts, and Congress can amend the APA if that's not what they intended, I'd say the remedy is obvious.

[Commenter_XY]

CJ Roberts has a great sense of humor.

[apedad]

Prof. Adler, I agree with your position, but this sentence hurts, "As it happens, if one challenger has the ability to challenge an agency action in the D.C. Circuit, it is almost always the case that every challenger does."

"They've done studies you know. Sixty percent of the time it works every time." Brian Fantana, Anchorman

[QuantumBoxCat]

I have trouble understanding how the geographical jurisdiction of an Article III court (aside from the Supreme Court) can span the entire country. Even accepting the premise that lower courts possess the power to vacate agency rules, I don’t see how the injunction can apply beyond the court’s geographical territory, regardless of what the court says. The D.C. Court of Appeals could issue an injunction against a law passed in England, but that doesn’t actually mean the British government is bound by the court’s ruling. The court’s territorial jurisdiction simply doesn’t extend to England, no matter what the judges might claim.

I would think the most obvious way to challenge the court’s authority in this area is for the executive branch to simply reject a lower court’s claim to possess the power to issue a national injunction. If the D.C. Court of Appeals issues a national injunction in a case dealing with an agency rule, the executive should acknowledge the rule cannot be enforced within the court’s geographical territory. The rule should then continue to be applied outside that territory. At that point, someone outside of D.C., who is affected by the rule, can file suit claiming the rule is enjoined nationwide, and the question of jurisdiction can be the principle question that is addressed in the litigation. I imagine such a case would eventually wind up in the Supreme Court, and the issue can then be fully addressed on briefing and argument.

[pauldupont]

One thing I want to tell you is to keep doing what you're doing and getting better and better. Great article bluey

[pauldupont]

One thing I want to tell you is to keep doing what you’re doing and getting better and better. Great article bluey