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

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.

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