UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

__________________________________________

 )

ORGANIC TRADE ASSOCIATION, )

 )

Plaintiff, )

 )

v. ) Civil Action No. 17-1875 (PLF)

 ) 

UNITED STATES DEPARTMENT OF )

AGRICULTURE, et al., )

 )

Defendants. )

__________________________________________)

OPINION

Defendants the United States Department of Agriculture (“USDA”), et al., have 

filed a Motion for Voluntary Remand (“Def. Mot.”) [Dkt. No. 142]. Plaintiff Organic Trade 

Association (“OTA”) opposes the motion and argues that the Court should rule on the merits of 

the parties’ cross-motions for summary judgment, which are ripe for review. See Plaintiff’s

Opposition to USDA’s Request for Remand Without Vacatur (“Pl. Opp.”) [Dkt. No. 151]. For 

the following reasons, the Court will grant defendants’ motion to remand without vacatur and 

deny the summary judgment motions as moot.1

1 The documents that the Court has considered in connection with the pending 

motion include: Complaint (“Compl.”) [Dkt. No. 1.]; First Amended Complaint (“First. Am. 

Compl.”) [Dkt. No. 13]; Second Amended Complaint (“Second. Am. Compl.”) [Dkt. No. 34];

Third Amended Complaint (“Third Am. Compl.”) [Dkt. No. 121]; Joint Status Report and 

Motion to Stay (“Feb. 19, 2021 Mot. Stay”) [Dkt. No. 128]; Joint Status Report and Stipulation 

to Lift Stay (“Stip. Lift Stay”) [Dkt. No. 137]; plaintiff’s Motion for Summary Judgment on its 

Third Amended Complaint (“Pl. Mot. Summ. J.”) [Dkt. No. 140]; defendants’ Motion for 

Voluntary Remand (“Def. Mot.”) [Dkt. No. 142]; defendants’ Motion for Summary Judgment

(“Def. Mot. Summ. J.”) [Dkt. No. 149]; plaintiff’s Opposition to USDA’s Request for Remand 

Without Vacatur (“Pl. Opp.”) [Dkt. No. 151]; Reply in Support of Defendants’ Motion for 
2

I. BACKGROUND

The dispute in this case involves two rules issued by the USDA in relation to 

regulating organic livestock and poultry conditions: the Organic Livestock and Poultry Practice 

Rule (“OLPP Rule”) and a subsequent rule withdrawing the OLPP Rule (“Withdrawal Rule”). 

Because these rules, the legal framework in which they were promulgated, and the history of 

litigation in this case all bear on the question of whether the Court should remand this matter to 

the USDA, the Court summarizes the background and procedural history of this case. 

The USDA issued the OLPP Rule pursuant to its authority under the Organic 

Foods Production Act (“OFPA”), which Congress enacted in 1990 “to establish national 

standards governing the marketing of certain agricultural products as organically produced 

products”; “assure consumers that organically produced products meet a consistent standard”; 

and “facilitate interstate commerce in fresh and processed food that is organically produced.” 

7 U.S.C. § 6501. The OFPA established the National Organic Standards Board (“NOSB”) to 

“provide recommendations to the Secretary [of Agriculture] regarding . . . implementation” of 

the organic certification program. 7 U.S.C. § 6518(k)(1); Organic Trade Ass’n v. U.S. Dep’t of 

Agriculture (“Organic Trade Ass’n I”), 370 F. Supp. 3d 98, 101 (D.D.C. 2019).

On April 13, 2016, the USDA published its proposed OLPP Rule pursuant to the 

OFPA. See National Organic Program; Organic Livestock and Poultry Practices, 81 Fed. 

Voluntary Remand (“Def. Reply”) [Dkt. No. 153]; plaintiff’s Consolidated Reply in Support of 

OTA’s Motion for Summary Judgment and Opposition to USDA’s Motion for Summary 

Judgment [Dkt. No. 154]; defendants’ Reply in Support of Defendants’ Motion for Summary 

Judgment [Dkt. No. 157]; defendants’ Notice of Supplemental Authority [Dkt. No. 162]; 

defendants’ Response to the Court’s March 9, 2022 Order (Def. Suppl. Br.”) [Dkt. No. 165]; 

plaintiff’s Motion to Accept Brief for Filing Nunc Pro Tunc [Dkt. No. 166]; plaintiff’s 

Supplemental Brief in Support of Proceeding to Reach the Merits of this Case (“Pl. Suppl. Br.”) 

[Dkt. No. 167]; and plaintiff’s Notice of Consent [Dkt. No. 168].
3

Reg. 21,956 (Apr. 13, 2016). The proposed OLPP Rule sought to “amend the organic livestock 

and poultry production requirements by: adding new provisions for livestock handling and 

transport for slaughter and avian living conditions; and expanding and clarifying existing 

requirements covering livestock health care practices and mammalian living conditions.” Id.

at 21,956. On January 19, 2017, after receiving and considering public comments to the 

proposed OLPP Rule, the USDA issued the final OLPP Rule. National Organic Program (NOP); 

Organic Livestock and Poultry Practices, 82 Fed. Reg. 7,042 (Jan. 19, 2017). The OLPP Rule 

was set to become effective on March 20, 2017, and to be fully implemented, with two 

exceptions, by March 20, 2018. See id.

On January 20, 2017, Donald J. Trump assumed the presidency. That same day, 

the Trump administration issued a moratorium mandating reconsideration of all federal 

regulations that were finalized under the Obama administration but had not yet taken effect at the 

time of the transition. See The White House, Memorandum for the Heads of Executive 

Departments and Agencies, 2017 WL 280678, at *1 (Jan. 20, 2017). Consistent with that 

directive, the USDA delayed the effective date of the OLPP Rule three times. National Organic 

Program (NOP); Organic Livestock and Poultry Practices (“February Delay Rule”), 82 Fed. 

Reg. 9,967 (Feb. 9, 2017); National Organic Program (NOP); Organic Livestock and Poultry 

Practices (“May Delay Rule”), 82 Fed. Reg. 21,677 (May 10, 2017); National Organic Program 

(NOP); Organic Livestock and Poultry Practices (“November Delay Rule”), 82 Fed. Reg. 52,643 

(Nov. 14, 2017); see also Organic Trade Ass’n I, 370 F. Supp. 3d at 104. In analyzing the OLPP 

Rule, the USDA further determined that the Rule had “significant policy and legal issues” 

requiring additional assessment. May Delay Rule at 21,677. 
4

On September 13, 2017, OTA brought suit alleging that the February and May 

Delay Rules violated the OFPA and the Administrative Procedure Act (“APA”) by delaying the 

effective date of the Final OLPP Rule without proper notice and opportunity for the public to 

comment, and without properly consulting the NOSB. Compl. ¶¶ 1-9. OTA filed an amended

complaint on December 8, 2017, alleging that the additional November Delay Rule violated the 

OFPA and the APA for similar reasons. First. Am. Compl. 

On December 18, 2017, the USDA initiated a proposed rulemaking to formally 

revoke the OLPP Rule. See National Organic Program (NOP); Organic Livestock and Poultry 

Practices – Withdrawal, 82 Fed. Reg. 59,988 (Dec. 18, 2017) (providing notice and a 30-day 

comment period). The USDA published its final Withdrawal Rule, which rescinded the OLPP 

Rule, on March 13, 2018. See National Organic Program (NOP); Organic Livestock and Poultry 

Practices (“Withdrawal Rule”), 83 Fed. Reg. 10,775 (Mar. 13, 2018). The basis for the USDA’s 

withdrawal of the OLPP Rule was two-fold: (1) “nothing in [7 U.S.C. § 6509] authorize[d] the 

broadly prescriptive, stand-alone animal welfare regulations contained in the OLPP final rule”;

and (2) even if the USDA had the statutory authority to issue the OLPP Rule, “the costs of the 

OLPP final rule outweigh potential benefits.” Id. at 10,776-79. The USDA noted three primary 

errors in the OLPP’s Regulatory Impact Analysis (“RIA”): 

First, in applying the discount rates to assess the net present value 

of the OLPP Rule’s benefits over a 15-year time frame, USDA 

used an incorrect mathematical formula. . . . Second, the OLPP 

RIA ‘estimated [costs] to be constant over time’ while its ‘benefits 

were . . . straight line reduced over time,’ leading to ‘an 

inconsistency in the treatment of costs and benefits over time.’ . . . 

[And] third, the measure of benefits in the OLPP RIA was based 

on research that USDA believed overstated the measure of 

consumer willingness-to-pay for standards adopted by the Rule.
5

Def. Mot. at 4 (quoting Withdrawal RIA [Dkt. No. 102-2] at 11). After correcting for these 

errors, the USDA determined there was “little, if any, economic justification for the OLPP final 

rule.” Withdrawal Rule, 83 Fed. Reg. at 10,782. 

On April 11, 2018, OTA again amended its complaint, alleging that the 

Withdrawal Rule was arbitrary and capricious under the APA and that it violated the OFPA 

because the USDA had failed to engage with NOSB in finalizing the Withdrawal Rule. Second 

Am. Compl. Judge Rosemary Collyer, who presided over this case prior to her retirement, 

granted the USDA’s motion for voluntary remand “to ensure the Court has a complete record at 

summary judgment.” Organic Trade Ass’n v. U.S. Dep’t of Agriculture (“Organic Trade 

Ass’n II”), Civ. Action No. 17-1875, 2020 WL 12118917, at *2 (D.D.C. Mar. 12, 2020). On 

September 4, 2020, after seeking public comment on the RIAs, the USDA issued a final decision 

concluding that the OLPP Rule and Withdrawal Rule RIAs were “seriously flawed and thus did 

not produce a reliable projection of the costs and benefits.” National Organic Program (NOP); 

Final Decision on OLPP Rule and Summary of Comments on the Economic Analysis Report 

(“Final Decision”), 85 Fed. Reg. 57,937, 57,943 (Sept. 17, 2020). The USDA stated that it did 

not intend to prepare another RIA because it did not believe the OFPA even granted the agency 

authority to issue the OLPP Rule in the first place. Id. On November 2, 2020, OTA filed its 

Third Amended Complaint stating causes of action based on the delay rules and the Withdrawal 

Rule. Third Am. Compl. ¶¶ 245-80.

On January 20, 2021, Joseph R. Biden was inaugurated as President of the United 

States. Following the change of administration, the parties jointly moved to stay the proceedings

“while they explore[d] the potential for an agreement that would allow resolution of this matter 

without further litigation.” Feb. 19, 2021 Mot. Stay at 2. After the parties failed to reach an 
6

agreement, the Court entered a scheduling order to govern summary judgment briefing and 

directed that if “the United States wishes to file a motion for voluntary remand, it may do so at 

any time.” Order [Dkt. No. 139] at 1. 

On June 24, 2021, the USDA filed its motion for voluntary remand in order to 

“reconsider the prior Administration’s interpretation [in the Withdrawal Rule] that the Organic 

Foods Production Act does not authorize . . . the 2017 Organic Livestock and Poultry Practices 

(OLPP) final rule.” Def. Mot. at 9 (quoting Press Release, Tom Vilsack, Secretary, U.S. 

Department of Agriculture, Statement from Agriculture Secretary Tom Vilsack on Organic 

Livestock and Poultry Practices Final Rule (“Secretary Vilsack Press Release”) (June 17, 2021), 

https://www.usda.gov/media/press-releases/2021/06/17/statement-agriculture-secretary-tomvilsack-organic-livestock-and.) (alterations in original). According to public statements by 

Secretary of Agriculture Tom Vilsack, this would involve “a rulemaking to address this [issue] 

and to include a proposal . . . [on] topics that were the subject of the OLPP final rule.” Id.

(alterations in original). 

On March 4, 2022, Judge Richard Seeborg of the United States District Court for 

the Northern District of California issued a decision in a case challenging the exact same rule at 

issue here. See Center for Environmental Health v. Vilsack, 2022 WL 658965 (N.D. Cal. 

Mar. 4, 2022). Judge Seeborg granted the USDA’s motion to remand without vacatur, remanded 

the matter back to the USDA, and ordered the parties to file a status report within 180 days of his 

decision. Id. at *5. On March 9, 2022, this Court ordered the filing of supplemental memoranda 

to solicit the parties’ positions regarding the impact of Judge Seeborg’s order on this action. See

Minute Order (Mar. 9, 2022). Both parties stated in their supplemental memoranda that they do 

not believe Judge Seeborg’s decision deprives this Court of authority to decide the pending 
7

motions for summary judgment. See Pl. Suppl. Br. at 23; Def. Suppl. Br. at 2. OTA requested 

that the Court proceed to a merits ruling on the summary judgment motions and deny the 

USDA’s motion for remand, while the USDA requested that the Court remand the matter to the 

USDA and deny as moot the pending motions for summary judgment. All motions for summary 

judgment and the motion for voluntary remand have now been fully briefed.

II. LEGAL STANDARD

“A district court has broad discretion to decide whether and when to grant an 

agency’s request for a voluntary remand.” Limnia, Inc. v. U.S. Dep’t of Energy, 857 

F.3d 379, 381 (D.C. Cir. 2017). Three considerations inform a court’s exercise of that discretion. 

First, “voluntary remand is typically appropriate only when the agency intends to 

revisit the challenged agency decision on review.” Limnia, Inc. v. U.S. Dep’t of Energy, 857 

F.3d at 381. While this “is not to say that an agency need confess error or impropriety . . . . the 

agency ordinarily does at least need to profess intention to reconsider, re-review, or modify the 

original agency decision that is the subject of the legal challenge.” Id. at 387; accord Keltner v. 

United States, 148 Fed. Cl. 552, 562 (2020). Courts have described this as a “threshold 

requirement,” see American Waterways Operators v. Wheeler, 427 F. Supp. 3d 95, 97 

(D.D.C. 2019), and it is also the most important hurdle for the agency to clear. “[S]o long as 

‘the agency intends to take further action with respect to the original decision on review,’” courts 

“generally grant an agency’s motion to remand.” Utility Solid Waste Activities Grp. v. EPA, 

901 F.3d 414, 436 (D.C. Cir. 2018) (quoting Limnia, Inc. v. Dep’t of Energy, 857 F.3d at 386). 

Second, if the agency appropriately demonstrates its intent to revisit the 

challenged decision, a court may consider whether the request for remand is “substantial and 

legitimate,” Keltner v. United States, 148 Fed. Cl. at 563, or alternatively, “if the agency’s 
8

request appears to be frivolous or made in bad faith,” Utility Solid Waste Activities Grp. v. 

EPA, 901 F.3d at 436. “Courts commonly grant such requests when the motion [for remand] is 

made in response to intervening events outside of the agency’s control,” American Waterways 

Operators v. Wheeler, 427 F. Supp. 3d at 97; but “even if there are no intervening events, the 

agency may request a remand (without confessing error) in order to reconsider its previous 

position,” Utility Solid Waste Activities Grp. v. EPA, 901 F.3d at 436 (quotation marks omitted). 

“Remand has the benefit of allowing ‘agencies to cure their own mistakes rather than wasting the 

courts’ and the parties’ resources reviewing a record that both sides acknowledge to be incorrect 

or incomplete.’” Utility Solid Waste Activities Grp. v. EPA, 901 F.3d at 436 (quoting Ethyl 

Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993)). If a request for remand is frivolous or 

made in bad faith, however, “it is appropriate to deny remand.” Id. 

Third, the reviewing court “must ‘consider whether remand would unduly 

prejudice the non-moving party.’” American Waterways Operators v. Wheeler, 427 F. Supp. 3d 

at 98 (quoting Utility Solid Waste Activities Grp. v. EPA, 901 F.3d at 436); Clean Wisconsin v. 

EPA, 964 F.3d 1145, 1175-76 (D.C. Cir. 2020). Courts are more likely to find a lack of undue 

prejudice where “[g]ranting [the defendant] a voluntary remand will merely put [p]laintiffs in the 

materially same position as if the Court were to grant [the defendant] summary judgment.” 

Empire Health Found. v. Becerra, Civ. Action No. 20-2149, 2022 WL 370559, at *5 (D.D.C. 

Feb. 8, 2022) (internal quotations omitted). Courts also factor in the potential for unreasonable 

delay. See Clark v. Perdue, Civ. Action No. 19-394, 2019 WL 2476614, at * 3-4 (D.D.C. 

June 13, 2019) (remanding where “[d]isposing of the Government’s Motion exactly as [the 

plaintiff] requests would not . . . necessarily result in less delay than granting the request.”).
9

III. DISCUSSION

Defendants ask the Court to remand “so that USDA can revisit the issues in this 

case on its own initiative, through further rulemaking.” Def. Mot. at 1. Specifically, the USDA 

seeks to revisit the conclusions that the OLPP rule “was not authorized under the Organic Foods 

Production Act,” and “that it was not economically justified.” Id. The USDA asserts that it now 

proposes “to reconsider the justifications for the prior withdrawal and readopt policies embodied 

by the OLPP Rule, while simultaneously conducting a new regulatory impact analysis to support 

that proposal.” Def. Reply at 1.

A. The USDA Intends to Revisit the Challenged Decision on Remand

On June 17, 2021, Secretary of Agriculture Tom Vilsack issued the following 

public statement:

We intend to reconsider the prior Administration’s interpretation 

that the Organic Foods Production Act does not authorize USDA to 

regulate the practices that were the subject of the 2017 Organic 

Livestock and Poultry Practices (OLPP) final rule. I have directed 

the National Organic Program to begin a rulemaking to address this 

statutory interpretation and to include a proposal to disallow the use 

of porches as outdoor space in organic production over time and on 

other topics that were the subject of the OLPP final rule. We

anticipate sending the proposed rule to OMB within six to nine 

months from the date of the remand. We look forward to receiving 

public comments on those topics and, after reviewing the comments, 

USDA will publish a final rule.

See Secretary Vilsack Press Release. The USDA contends that the rulemaking that would result 

from this process “if finalized, would moot this case.” Def. Mot. at 9.

Secretary Vilsack’s announcement is powerful evidence that that the USDA 

“intends to take further action with respect to the original agency decision on review.” Limnia, 

Inc. v. United States Dep’t of Energy, 857 F.3d at 386. The original agency decision that OTA 
10

challenges is the Withdrawal Rule, which was premised in part upon the conclusion that the 

OFPA does not provide authority to issue the OLPP Rule and that the underlying economic 

analysis of the rule was flawed. Withdrawal Rule, 83 Fed. Reg. at 10,776-81. Secretary 

Vilsack’s statement announces an explicit intention to “begin a rulemaking to address this 

statutory interpretation,” Secretary Vilsack Press Release, and includes “a proposed timeline,” 

Utility Solid Waste Activities Grp. v. EPA, 901 F.3d at 437, demonstrating concrete and specific 

plans for reconsideration. In the most literal sense, therefore, agency leadership has publicly 

stated that the agency intends to revisit the challenged rule.

OTA disagrees with this interpretation, arguing that Secretary Vilsack’s statement 

“does not propose to reconsider the original agency decision under review” because it “[i]nstead 

. . . proposes a ‘new rulemaking supported by a new economic analysis.’” Pl. Opp. at 11 

(quoting Def. Mot. at 14). Yet the “two grounds” that plaintiff identifies as forming the basis of 

the USDA’s reasoning in the Withdrawal Rule – lack of statutory authority and flawed economic 

analysis – directly correspond to Secretary Vilsack’s statement. See Secretary Vilsack Press 

Release; Def. Mot. at 10.

2

In addition to Secretary Vilsack’s statement, the representations in the USDA’s 

briefing before this Court support the assertion that the agency intends to swiftly reconsider the 

Withdrawal Rule if this case is remanded. The USDA reiterated in its motion to remand that the 

agency “has indicated its intent to reconsider the Withdrawal Rule . . . [and] intends to complete 

its work on a proposed rule within six-to-nine months of a remand order.” Def. Mot. at 11. The

2 OTA’s underlying concern appears to be that a remand will “leave the litigant 

facing another multi-year stretch of living without the benefit of the important improvements of 

the OLPP.” Pl. Opp. at 11. Even if true, this goes to the question of prejudice, discussed below, 

and cannot support an argument that the agency does not intend to revisit the challenged action 

on remand.
11

issues that formed the basis for withdrawing the OLPP Rule – namely, the concern that the rule

exceeded statutory authority and was not economically justified – “are under review in this case, 

[and] are exactly what USDA intends to reconsider.” Def. Reply at 2-3. The USDA also intends 

to take action on the RIA at issue “by preparing a new regulatory impact analysis to support 

promulgation of the forthcoming proposed rule.” Id. at 3. The USDA further contends that “[i]f 

the anticipated proposed rule is finalized, it would alter the regime created by the Withdrawal 

Rule and readopt policies that are the same or similar to those in the OLPP Rule.” Id. 

In its supplemental memorandum filed on March 24, 2022, OTA advised the 

Court of a new draft rule already submitted by the USDA to the Office of Management and 

Budget (“OMB”) and noticed on the OMB website on December 3, 2021. See Pl. Suppl. Mem. 

at 3-4; OMB, List of Regulatory Actions Currently Under Review, Organic Livestock and 

Poultry Standards (“OLPS Draft Rule”) (Dec. 3, 2021), https://www.reginfo.gov/public/do

/eAgendaViewRule?pubId=202110&RIN=0581-AE06. In the almost four months since the

notice was published, however, neither party brought this OLPS Draft Rule to the Court’s 

attention. OTA now asserts that “USDA’s new Draft Rule at OMB greatly weakens if not moots 

the USDA’s motion for remand in this case” because “[t]he Draft Rule is not a reconsideration or 

re-review of the Withdrawal Rule or that rule’s [RIA] that is challenged in this case and does not 

propose to provide the relief sought.” Pl. Suppl. Mem. at 7, 5.

The Court disagrees. In fact, the notice on the OMB website is evidence that that 

the USDA not only “intends to take further action,” but has already begun “to take further action

with respect to the original agency decision on review.” Limnia, Inc. v. United States Dep’t of 

Energy, 857 F.3d at 386. The fact that the USDA is now working on an updated rule “to clarify 

the USDA organic standards for livestock and poultry living conditions and health practices”
12

demonstrates that the agency is serious about following through with the promises made in 

Secretary Vilsack’s press release. See OLPS Draft Rule. The Court therefore concludes that the

“threshold requirement,” American Waterways Operators v. Wheeler, 427 F. Supp. 3d at 97, is 

satisfied.

B. Substantial and Legitimate Concerns Justify a Remand and 

the USDA’s Request is Not Frivolous

The USDA’s public and unequivocal statement that it intends to revisit the OLPP 

Rule, along with the interpretation of the OFPA used to justify the Withdrawal Rule, suggests 

that the USDA’s request for remand is legitimate, and there is nothing in the record to suggest 

that it is frivolous or made in bad faith. 

The request for remand is a commonsense response to the USDA’s conclusion 

that the OLPP RIA was “seriously flawed and thus did not produce a reliable projection of costs 

and benefits.” Def. Mot. at 9 (quoting Final Decision, 85 Fed. Reg. at 57,943). While the 

agency is not required to confess error in seeking remand, Limnia, Inc. v. United States Dep’t of 

Energy, 857 F.3d at 387, the USDA’s acknowledgment that “[i]mplementing the OLPP Rule 

based on such a flawed economic analysis is not in the public interest,” Def. Mot. at 9 (quoting 

Final Decision, 85 Fed. Reg. at 57,944), underscores the legitimacy of its remand request. As 

Judge Seeborg noted in Center for Environmental Health v. Vilsack, “[a]lthough there is some 

uncertainty about the issuance and timing of a new rule, the USDA’s intention to move forward 

with rulemaking ‘in a matter of months’ does not appear to be in bad faith.” Center for 

Environmental Health v. Vilsack, 2022 WL 658965, at *3. 

Moreover, “[g]iven the procedural posture of this case, interests of judicial 

economy counsel in favor of a voluntary remand.” FMBE Bank Ltd. v. Lew, 142 F. 
13

Supp. 3d 70, 74 (D.D.C. 2015). The legal issues in the parties’ cross-motions for summary 

judgment are complex and fact-intensive. It simply would not make sense to proceed to 

summary judgment and decide “the relative propriety” of the OLPP and withdrawal rules when 

the USDA has already acknowledged that both rules “incorporated flawed economic 

assumptions.” Def. Mot. at 10. “A remand will allow the case to ‘come before the court in a 

posture that facilitates review on the merits,’ . . . [and] more focused judicial review.” Bayshore 

Cmty. Hosp. v. Azar, 325 F. Supp. 3d 18, 23 (D.D.C. 2018) (quoting Ryan v. Bentsen, 12 

F.3d 245, 249 (D.C. Cir. 1993)).

OTA’s proposal, by contrast, would be an inefficient way to proceed. It would 

make no sense for the Court to invalidate the Withdrawal Rule and reinstate the OLPP Rule, as 

OTA requests, Pl. Mot. Summ. J.at 35, now that the USDA has concluded that the analysis that 

supported the OLPP Rule in the first instance is fatally flawed.

C. Remand Would Not Unduly Prejudice OTA

OTA contends that remand would result in prejudice to OTA, both because the 

delay in implementing the original OLPP rule would exacerbate ongoing market and economic 

harms, and because, at the time OTA filed its opposition to the motion to remand, briefing on 

summary judgment was already underway. Pl. Opp. at 19-23. 

While OTA may have legitimate concerns about delay, this is not a reason to deny 

remand. Even if the Court were to reach the merits of the cross-motions for summary judgment, 

as OTA requests, and even if OTA were to prevail on summary judgment, the USDA is correct 

that “[a]ny victory . . . would be short-lived if the OLPP Rule were reinstated only to be the 

subject of new legal challenge[s]” on the basis of the catalogued flaws in the OLPP RIA. Def. 

Mot. at 11. There simply is no plausible alternative path forward whereby the Withdrawal Rule 
14

is struck down and the OLPP Rule is reinstated for any meaningful amount of time, now that the 

USDA has publicly acknowledged the flawed reasoning underlying the OLPP Rule. To be sure, 

the remand may cause delay; however, that delay is “time well spent.” Bayshore Cmty. Hosp. v. 

Azar, 325 F. Supp. 3d at 23. Remand is a necessary procedural step for the USDA to reconsider 

conclusions in the Withdrawal Rule (i.e., the agency’s statutory authority to promulgate the 

OLPP Rule under the OFPA) and to confront the noted defects in the RIAs. OTA instead urges 

the Court to “forc[e] a rule onto the public which the agency has acknowledged is unsound[,] 

[which] would undermine consumers’ faith in the organic label—the main prejudice Plaintiff[]

seek[s] to avert.” Center for Environmental Health v. Vilsack, 2022 WL 658965, at *4.

OTA’s next argument, that voluntary remand is particularly inappropriate where it 

leaves non-movants subject to a purportedly invalid regulation – here, the Withdrawal Rule –

similarly fails. See Pl. Opp. at 20 (discussing Chlorine Chemistry Council v. EPA, 206 

F.3d 1286, 1288 (D.C. Cir. 2000) (denying motion for voluntary remand where remand “would 

have left petitioners subject to a rule they claimed was invalid.”)). In contrast to Chlorine 

Chemistry Council, where the agency “made no offer to vacate the rule,” 206 F.3d at 1288, here 

the USDA seeks to reconsider and remedy the very concerns identified in OTA’s challenge to 

the Withdrawal Rule. The parties differ only on whether this should occur through the remand 

process or through this Court’s adjudication of summary judgment.3 The Court concludes that 

these concerns are best resolved by remand to the agency.

3 OTA’s reliance on this Court’s determination in American Waterways Operators 

v. Wheeler, 427 F. Supp. 3d 95, is also misplaced. In that case, Judge Amit Mehta determined 

that environmental plaintiffs would be unduly prejudiced in part because remand would hamper 

ongoing and “significant environmental progress.” 427 F. Supp. 3d at 99. Here, by contrast, 

granting the USDA’s motion to remand for further consideration of the Withdrawal Rule does 

not interfere with any ongoing regulation; if anything, it removes a barrier to reinstating the 

OLPP Rule.
15

Finally, OTA argues that the USDA’s purpose in seeking voluntary remand is to 

moot the case, and according to OTA, “remands for new rulemakings for the purpose of mooting 

merit[orious] challenges to existing regulations are inequitable, inherently prejudicial, and 

disallowed.” Pl. Opp. at 19 (alterations omitted). The Court does not read or understand the 

referenced case law as supporting the foregoing proposition. See generally Utility Solid Waste

Activities Grp. v. EPA, 901 F.3d 414 (D.C. Cir. 2018); Limnia, Inc. v. United States Dep’t of 

Energy, 857 F.3d 379 (D.C. Cir. 2017). Even if Utility Solid Waste and Limnia stood for that 

proposition, however, this Court has already recognized that it is legitimate for an agency to 

moot claims against it by promulgating a new rule in order to “cure previous procedural defects 

or supersede previous rules.” Organic Trade Ass’n I, 370 F. Supp. 3d at 111; see Center for Sci. 

in the Pub. Interest v. Regan, 727 F.2d 1161, 1164 (D.C. Cir. 1984) (“[I]t is not improper for an 

agency to engage in new rulemaking to supersede [prior] defective rulemaking.”). Concern that 

“remand could require [OTA] to submit new or updated evidence and analysis, participate in 

another round of notice and comment, and re-litigate the next petition for review” does not 

demonstrate undue prejudice. See, e.g., Clean Wisconsin v. EPA, 964 F.3d at 1175-76. For the 

foregoing reasons, the Court concludes that granting the USDA’s motion for voluntary remand 

will not unduly prejudice OTA.

D. Vacatur

The final question is whether the Court should vacate the Withdrawal Rule before 

remanding to the USDA, or deny vacatur and maintain the status quo while the USDA 

reconsiders the rule on remand. When a Court identifies an infirmity in a rule, vacatur and 

remand is the “normal” remedy. Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C.

Cir. 2014). The D.C. Circuit has recognized, however, that courts have the discretion to remand 
16

without vacatur based on the circumstances of the specific case. See, e.g., Black Oak Energy, 

LLC v. FERC, 725 F.3d 230, 244 (D.C. Cir. 2013); Delta Air Lines, Inc. v. Exp.–Imp. Bank, 718 

F.3d 974, 978 (D.C. Cir. 2013); Advocates for Highway & Auto Safety v. Fed. Motor Carrier 

Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005) (“While unsupported agency action 

normally warrants vacatur, . . . this court is not without discretion [to remand without vacatur].”).

In considering whether to vacate, courts weigh “the ‘seriousness of the [rule’s] 

deficiencies’ and the likely ‘disruptive consequences’ of vacatur.” Allina Health Servs. v. 

Sebelius, 746 F.3d at 1110 (quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 

F.2d 146, 150-51 (D.C. Cir. 1993)). The decision whether to vacate is based on equitable 

considerations. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 282 F. 

Supp. 3d 91, 108-09 (D.D.C. 2017) (“Vacatur is clearly a form of equitable relief that the Court 

may award, withhold, and craft to fit the circumstances of the case before it.”) (quoting Sierra 

Forest Legacy v. Sherman, 951 F.Supp.2d 1100, 1106 (E.D. Cal. 2013)). The D.C. Circuit has 

concluded that “[w]hen an agency may be able readily to cure a defect,” remand without vacatur 

is most appropriate. Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009). 

In this case, equitable considerations weigh heavily in favor of remanding without 

vacatur. Here, although the USDA has acknowledged “deficiencies” with the Withdrawal Rule’s 

RIA, see Def. Mot. at 6, the Court concludes that these “deficiencies” are minor in light of “the 

likely ‘disruptive consequences’ of vacatur.” Allina Health Servs. v. Sebelius, 746 F.3d at 1110

(quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d at 150). 

Furthermore, the USDA “has recognized at least some of the deficiencies [with the Withdrawal 

Rule] and is already addressing them.” Center for Environmental Health v. Vilsack, 2022 WL 

658965, at *5; see also Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d at 198 (“When an 
17 

agency may be able readily to cure a defect . . . the first factor in Allied–Signal counsels remand 

without vacatur.”). 

On the other hand, “the likely ‘disruptive consequences’ of vacatur” are serious. 

Allina Health Servs. v. Sebelius, 746 F.3d at 1110. In fact, vacating the Withdrawal Rule and 

reinstating the OLPP Rule makes little sense. Vacatur “would trade one defective rule for 

another” and force the OLPP Rule to “immediately spring into effect,” causing “[m]any 

regulated entities [to] instantly go out of compliance, without the lead time the OLPP Rule 

envisioned.” Environmental Health v. Vilsack, 2022 WL 658965, at *5, *1. The Court therefore 

concludes that the “disruptive consequences of vacatur,” vastly outweigh maintaining the status 

quo. Allina Health Servs. v. Sebelius, 746 F.3d at 1110. The motion to remand is granted 

without vacatur. 

IV. CONCLUSION

For the reasons set forth in this Opinion, the Court will grant the USDA’s motion 

for voluntary remand without vacatur and deny the parties’ cross-motions for summary judgment 

as moot. An Order consistent with this Opinion shall issue this same day. 

SO ORDERED.

 PAUL L. FRIEDMAN

 United States District Judge

DATE: March 30, 2022 

/s/