The Unusual Remedy
of Remand Without
Vacatur

Stephanie J. Tatham
Attorney Advisor, Administrative Conference of the United States

Final Report: Jan. 3, 2014
The author prepared this report in her capacity as an internal consultant to the Conference and the views
expressed are those of the author and do not necessarily reflect those of the members of the Conference or its
committees.

ADMINISTRATIVE CONFERENCE
OF THE UNITED STATES

EXECUTIVE SUMMARY
I.

AN EARLY HISTORY OF REMAND WITHOUT VACATUR ............................................................. 1

A. Introduction to the Remedy ...........................................................................................................................1
The Rise of Remand without Vacatur ...........................................................................................................2
From Georgetown to Allied-Signal: Increasing Applicability and Application.............................................5
Checkosky and Dissent in the D.C. Circuit ....................................................................................................7
Supreme Silence: Declining to Decide ..........................................................................................................8
B. Review of the Academic Literature ...............................................................................................................9
ABA Resolution 107B ................................................................................................................................. 10
Legality of the Remedy ............................................................................................................................... 11
Levin on Equitable Remedial Discretion ..................................................................................................... 12
Constitutional Concerns .............................................................................................................................. 13
Prudential Considerations and Recommendations of Restraint ................................................................... 15
Early Empirical Observations ...................................................................................................................... 17

II. REMAND WITHOUT VACATUR IN THE D.C. CIRCUIT .............................................................. 19

A. Methodology ............................................................................................................................................... 19
Scope of Research ....................................................................................................................................... 19
Research Approach ...................................................................................................................................... 20
Categorical Analysis .................................................................................................................................... 21
B. Research Results .......................................................................................................................................... 21
RWV in the D.C. Circuit ............................................................................................................................. 22
RWV in Other Circuit Courts ...................................................................................................................... 27
C. Case Law Conclusions ................................................................................................................................ 28

III. CASE STUDIES: EPA, FERC, AND THE FCC ........................................................................... 30

A. The Environmental Protection Agency (EPA) ............................................................................................ 30
Is the Clean Air Act Special? ...................................................................................................................... 30
Honeywell: Interpreting the Clean Air Act .................................................................................................. 32
A Changing Climate: Revisiting the Clean Air Act..................................................................................... 35
B. The Federal Communications Commission (FCC)...................................................................................... 36
Council Tree Communications: Certiorari Denied ...................................................................................... 39
Perspectives from Agency Attorneys .......................................................................................................... 41
C. The Federal Energy Regulatory Commission (FERC) ................................................................................ 42
Perspectives from Agency Attorneys .......................................................................................................... 44
D. Case Study Conclusions .............................................................................................................................. 46

IV. CONCLUSIONS AND RECOMMENDATIONS ............................................................................... 48

A. Validity of the Remedy ............................................................................................................................... 49
Under the Administrative Procedure Act..................................................................................................... 49
On Statutory Review of Agency Action ...................................................................................................... 50
B. Application of Remand without Vacatur ..................................................................................................... 50
Application By Courts ................................................................................................................................. 50
Agency Responses ....................................................................................................................................... 51
C. Recommendations ....................................................................................................................................... 52
Validity of the Remedy ............................................................................................................................... 52
Recommendations to Courts ........................................................................................................................ 53
Recommendations to Agencies.................................................................................................................... 53

APPENDIX A: CASES EMPLOYING REMAND WITHOUT VACATUR, 1972-2013.................................. 54
APPENDIX B: GENERIC AGENCY QUESTIONNAIRE ......................................................................... 59

EXECUTIVE SUMMARY
Judicial remand of an agency decision that permits the action to remain in place is known
as remand without vacatur. The legal landscape has changed dramatically since the midtwentieth century, when “reviewing courts routinely vacated agency actions that they found to
have been rendered unlawfully.” 1 By the early 2000s, this remedial technique had become a
“familiar feature of administrative law practice.” 2 This is especially true for the Court of
Appeals for the D.C. Circuit, despite strong dissents from some members of the court. Remand
without vacatur has now been applied in cases spanning substantive areas of law ranging from
regulation of interstate air pollution to telecommunications to alien worker wage and visa rules.
It has been used in cases involving more than twenty cabinet level and independent agencies.
The remedy has also been employed, evidently infrequently, by the Federal, First, Third, Fifth,
Eighth, Ninth, and Tenth Circuit Courts of Appeals.
Part I.A of the report examines early applications of remand without vacatur and traces
major developments in the case law employing the remedy. The focus of this analysis was on
the D.C. Circuit, where the remedy evolved. Early characterizations of the D.C. Circuit’s use of
the remedy described it as a “general practice” where agency decisions were inadequately
reasoned, but more recently commentators have found that it is applied “fairly selectively.” 3 In
any event, the D.C. Circuit appears to use the remedy more frequently than other appellate
courts. The court’s decision of whether to employ remand without vacatur in a given case is
usually guided by a two factor analysis. First, the remedy may be employed where agency
decisions were inadequately explained or improperly adopted, and where further explanation by
the agency could possibly confirm the validity of the initial agency choice. Second, the remedy
may be applied in cases where the disruptive consequences of vacation are severe. In some of
these cases, the agency decision is capable of rehabilitation; in others, the flaws in the challenged
agency action are more serious and may require the agency to revisit its decision entirely.
Part I.B summarizes debate over the remedy, which began on the bench and has carried
over into the academy. Arguments for and against remand without vacatur can generally be
categorized as legal or prudential in nature. Legal arguments center around whether the remedy
is at odds with the plain language of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2),
which provides in part that reviewing courts “shall. . . hold unlawful and set aside agency action,
findings, and conclusions” found to violate one of the APA’s specified standards of review.
Supporters of the remedy, including the House of Delegates for the American Bar Association
(ABA), reject a literal reading of this sentence and argue that the review provision as a whole is
sufficiently open-ended to permit the exercise of judicial equitable discretion in choice of
remedy. Opponents read Section 706(2) to prohibit remand without vacatur, and argue that the
remedy raises separation of powers concerns by ignoring the legal requirements imposed by the
APA. These apprehensions share common constitutional roots with claims of judicial activism
or toleration of agency action that deviates from statutory directives.
1

American Bar Association, Resolution 107B, Sections of Administrative Law and Regulatory Practice and
Business Law, Report to the House of Delegates 1 (1997) [hereinafter ABA Resolution 107B and Section Report].
2
Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53
DUKE L. J. 291, 295 (2003). Professor Levin was heavily involved in the ABA’s parallel project.
3
Id. at n.11.

For the most part, the literal reading of the APA has not found favor among judges and
academics. Even some scholars who have expressed constitutional concerns regarding the
remedy recognize that it can have practical value. Proponents of remand without vacatur point to
the benefits that accrue when application of the remedy enhances stability in the regulatory
regime or in government regulated markets, protects reliance interests, avoids regulatory gaps,
allows agencies to continue collecting user fees, and ensures continued provision of public
benefits (including the benefits of regulation). Conversely, even advocates of the remedy
support a default of vacating problematic agency actions. A variety of commentators, including
the American Bar Association, have recommended limiting application of the remedy to cases
involving special circumstances and providing procedural protections where appropriate.
A review of the case law—conducted in accordance with the methodology described at
Part II.A and generally summarized in Part II.B of the report—indicates that the ABA and
academic recommendations have had limited practical effects. The D.C. Circuit has continued to
apply the remedy using the familiar two factor analysis and has only occasionally provided for
additional procedural protections.
Part III presents the results of case studies examining application of the remedy and
related developments at the Environmental Protection Agency (EPA), Federal Communications
Commission (FCC), and Federal Energy Regulatory Commission (FERC). These agencies were
chosen because, in the D.C. Circuit, the remedy is most frequently applied in cases in which they
are a party. The remedy is most often used in cases involving the Environmental Protection
Agency (EPA) that arise under the Clean Air Act.
Part III.A examines why the remedy appears most frequently in cases reviewing EPA’s
Clean Air Act regulations and discusses a recent and retracted case calling the legality of the
remedy under the Clean Air Act into question. In a rare example of direct consideration of the
remedy by Congress, the Clean Air Act was nearly amended to affirmatively permit the device in
the Waxman-Markey climate bill, which passed the House of Representatives but not the Senate.
Parts III.B and IIIC describe cases employing the remedy involving the FCC and
FERC, as well as present perspectives on the remedy shared by agency attorneys. While these
agencies rarely request the remedy, it can be valuable in agency-specific regulatory and
adjudicatory contexts as evidenced by the FCC’s recent defense of remand without vacatur in
response to a petition for certiorari that challenged its legality under the APA. Attorneys at these
agencies appear generally comfortable with existing applications of the remedy. Responses to
remands at both FCC and FERC can take varied forms, requiring adaptability to the judicial
mandate and changed circumstances, as well as procedural flexibility.
Part IV endorses the validity of the remedy under the APA and as an exercise of
equitable remedial authority, as well as offers conclusions and recommendations for courts and
agencies to consider when employing or responding to remand without vacatur.

I.

AN EARLY HISTORY OF REMAND WITHOUT VACATUR

A.

INTRODUCTION TO THE REMEDY

Remand without vacatur is an unusual remedy by several measures. Ordinarily, when a
court finds that an agency action was arbitrary and capricious, unlawful, or unsupported by
substantial evidence, the action is vacated and the agency must try again. In some cases—where
an agency action is flawed but could be sustained after reconsideration at the agency level, or
where the consequences of vacating the action would be disruptive—courts have instead
remanded the agency decision without vacatur. This remedial approach appears to have arisen
relatively recently and as a matter of judicial instigation. Empirically, it is uncommon; less than
seventy-five D.C. Circuit cases were identified in which the remedy was employed.
Remand without vacatur has been used to avoid severely disruptive consequences of
vacatur. In North Carolina v. EPA, the D.C. Circuit remanded without vacating EPA’s Clean
Air Interstate Rule (CAIR) despite a finding of “more than several fatal flaws in the rule.” 4 The
court had originally vacated the rule after concluding that very little of it “will survive[] remand
in anything approaching recognizable form.” 5 However, it reconsidered this decision after a
petition for rehearing, in which EPA argued that the rule would prevent an estimated 13,000
deaths per year by 2010 and 17,000 premature deaths per year by 2015 by achieving substantial
reductions in emissions of air pollution. 6 EPA argued that setting aside the rule would
compromise not only those public health benefits that were additional to those provided by prior
rules, but also those provided by prior rules that had been rescinded and could not automatically
spring back to life. 7 Finally, EPA pointed to price instability in the emissions trading market
resulting from the vacation decision and the penalty that reducing the value of emissions
allowances would impose on early adopters of pollution control technology. 8 This case is an
extreme example, but highlights the potential relief the remedy can offer.
The remedy is also employed in a variety of less disruptive cases, where the court focuses
on the agency’s ability to retain its action after reconsideration on remand. The remedial device
is still remarkable in such cases because it can permit agency decisions to remain in effect
despite errors that are prejudicial to the interests of challenging parties. 9 In employing remand
without vacatur, the court is essentially finding that prejudicial agency errors do not justify
setting aside the challenged action, a conclusion that deviates from long-standing legal norms.
4

North Carolina v. EPA, 531 F.3d 896, 901 (D.C. Cir. 2008) (vacating CAIR due to “fatal flaws”), modified, 550
F.3d 1176, 1177-78 (D.C. Cir. 2008) (amending judgment to remand CAIR without vacatur).
5
531 F.3d at 929 (quotation omitted).
6
Respondent EPA’s Petition for Rehearing or Rehearing En Banc at 10-11, North Carolina v. EPA, No. 05-1244
(D.C. Cir. filed Sept. 24, 2008).
7
Id. at 11.
8
Id. at 11-12.
9
Remand without vacatur is not a remedy for harmless error, the rule of which normally burdens challengers with
proving that alleged errors in agency action are harmful, and of which courts are to take “due account” in deciding
whether to set aside agency action under the APA. 5 U.S.C. § 706(2) (providing “. . . due account shall be taken of
the rule of prejudicial error.”) See Shinseki v. Sanders, 129 S. Ct. 1696, 1706, 1718 (D.C. Cir. 2009) (holding—in a
case under 38 U.S.C. § 7621(b)(2), which incorporates the APA’s prejudicial error language and approach— “the
burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination” and
denying relief for one petitioner after a finding of harmless agency error).

1

THE RISE OF REMAND WITHOUT VACATUR

According to a report of the ABA Administrative Law Section, routine vacation of
agency decisionmaking arose from “a time when most judicial review proceedings involved
regulated persons seeking relief from adjudicative orders directed specifically at them.” 10 In
1967, the Supreme Court’s decision in Abbott Laboratories, Inc. v. Gardner authorized legal
challenges to agency actions by persons not directly subject to enforcement orders (so called
preenforcement review). 11 The remedy of remand without vacatur may have been a partial
response to the subsequent rise of preenforcement review of agency rulemaking.
Preenforcement review allowed parties to challenge technical aspects of a rule or order prior to
coming to terms (and possible acceptance) with the realities of implementation. Preenforcement
review also permitted litigants to challenge a rule that they supported but did not feel went far
enough. For these challengers, a judicial remand requiring the agency to consider or take a more
stringent position may be a preferable remedy to vacation (and reversion to the status quo). 12 An
examination of the few early judicial decisions that employed remand without vacatur indicates
that courts may have recognized these and other equities in early applications of the remedy, as
part of a larger shift in the availability and focus on judicial review “so that its dominant purpose
is no longer the prevention of unauthorized intrusions on private autonomy, but the assurance of
fair representation for all affected interests in the exercise of the legislative power delegated to
agencies.” 13
The first known case clearly employing the remedy dates to at least the 1970s, 14 though
the remedy appears to have been used infrequently in the D.C. Circuit until the early 1990s. 15 It
is difficult to generalize from such a small set of decisions, but at least two themes emerge from
the pre-1990s case law: first, courts have used remand without vacatur in nationally significant
contexts to permit agencies a limited opportunity to revisit procedural improprieties without
programmatic disruption; second, courts at other times have treated remand without vacatur as an
interim remedy given an expectation of future change. In the first type of case, courts may or
may not expect agencies to alter the substance of their decisions on remand; in the latter they
may seek to require it.
10

ABA Resolution 107B, supra note 1 at 1.
387 U.S. 136 (1967).
12
Richard L. Revesz and Michael A. Livermore, RETAKING RATIONALITY: HOW COST-BENEFIT ANALYSIS CAN
BETTER PROTECT THE ENVIRONMENT AND OUR HEALTH 160-61 (2008) (describing how the remedy can provide proregulatory plaintiffs with the advantage of a weak regulation rather than no rule in the event of a successful
challenge).
13
Richard B. Stewart, Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1712 (1975).
14
Kennecott Copper Corp v. EPA, 462 F.2d 846 (D.C. Cir. 1972). Earlier remand orders issued by the D.C. Circuit
may have had similar effect as remand without vacatur, but the court’s use of the remedy was not explicit. For
example, in Radio Station KFH Co. v. FCC, the D.C. Circuit remanded for explanation without expressly vacating
the FCC’s refusal to reopen a request for rehearing of a dispute over broadcasting rights. See Radio Station KFH
Co. v. FCC, 247 F.2d 570 (D.C. Cir. 1957).
15
The author’s review of the literature identified only four D.C. Circuit decisions employing remand without
vacatur in the 1970s, and four examples from the 1980s. Nat’l Treasury Emp’s Union v. Horner, 854 F.2d 490
(D.C. Cir. 1988); Nat’l Coal. Against the Misuse of Pesticides v. Thomas, 809 F.2d 875 (D.C. Cir. 1987); Md.
People’s Counsel v. FERC, 768 F.2d 875 (D.C. Cir. 1985); Am. Fed’n of Gov’t Employees, AFL-CIO v. Block, 655
F.2d 1153 (D.C. Cir. 1981); Greyhound Corp. v. ICC, 551 F.2d 414 (D.C. Cir. 1977); Rodway v. USDA, 514 F.2d
809 (D.C. Cir. 1975); Kennecott Copper Corp v. EPA, 462 F.2d 846 (D.C. Cir. 1972).
11

2

Kennecott Copper Corporation v. EPA is the earliest known instance of remand without
vacatur in the federal Courts of Appeals. 16 Petitioner challenged EPA’s promulgation of national
secondary ambient air quality standards (NAAQS) for sulfur oxides (SOx) under the Clean Air
Act. EPA had based its secondary standards, which are intended to protect the public welfare
including vegetation and property, on air quality criteria adopted by its predecessor Department
of Health, Education and Welfare prior to the 1970 Clean Air Act Amendments. However, it
chose a secondary standard lower than that at which adverse effects on vegetation were said to be
observed in the earlier standard and did not explain the discrepancy. The Kennecott Corporation
challenged the secondary standards on these grounds, as well as by arguing that the standards
weren’t accompanied by a general statement of their basis and purpose as required by the
Administrative Procedure Act (APA), 5 U.S.C. § 553(c).
The D.C. Circuit acknowledged procedural problems with the regulations, but also
recognized their importance to meeting the congressional directives contained in the Clean Air
Act. The D.C. Circuit found that the regulation “as a whole” contained a “sufficient exposition
of the purpose and basis” to satisfy the legislative minimum of a “concise general statement”
required by the APA. 17 However, it also held that this case involved a special context of “fact,
statutory framework and nature of action” which required greater exposition than needed to meet
the minimum APA requirements. 18 Congress, the court observed, had provided for informal
promulgation of national ambient air quality standards after explicitly considering the need for
expedition in establishing clean air protections and also in light of the backstop provided by the
statutory requirement that the agency hold hearings on state implementation plans. 19 The court
remanded the case to EPA for further explanation but expressly “contemplated that this remand
will not halt or delay the ongoing proceedings for state adoption plans to meet and maintain the
national standards,” and declined to remark on what procedures would be necessary if EPA
chose to alter the standard on remand. 20
The Court of Appeals for the Third Circuit was quick to follow the D.C. Circuit’s lead in
Kennecott Copper, employing its equitable authority in two cases to leave in place challenged air
pollution regulations despite claims of procedural error. 21 In Sharon Steel Corp. v. EPA, the
Third Circuit held:
In hearing a petition for review, a court of appeals may exercise equitable powers
in its choice of a remedy, as long as the court remains within the bounds of statute
16

462 F.2d 846 (D.C. Cir. 1972).
Id. at 850.
18
Id.
19
Id. at n. 16.
20
Id. at 850-851. The court also observed that EPA had voluntarily notified state officials that the secondary
standard was to be treated as a nonenforceable guideline and given them the opportunity to revise their
implementation plan. Judge Leventhal entreated EPA to “use the Facilities of the Federal Register, available for
interpretive rulings, to assure widespread notice of administrative steps taken in the interest of clarification.” Id. at
850 n.19. EPA subsequently reissued an explanation in the Federal Register for its decision, although within a few
years the standard was withdrawn in light of internal doubt over scientific validity and allegedly as well as in
response to pressure from the Office of Management and Budget. R. Shep Melnick, REGULATION AND THE COURTS:
THE CASE OF THE CLEAN AIR ACT 240-241 (1983).
21
Duquesne Light Co. v. EPA, 481 F.2d 1 (3d Cir. 1973), vacated on other grounds, 427 U.S. 902 (1976) (citing
Kennecott Copper Corp. v. EPA, 462 F.2d 846 (D.C. Cir. 1972)); Sharon Steel Corp. v. EPA, 597 F.2d 377 (3d Cir.
1979) (citing Duquesne, 481 F.2d 1 at 10).
17

3

and does not intrude into the administrative province. . . . Although the
companies are entitled to relief, we must be careful not to grant relief so broad as
to endanger the Congressional scheme for the control of air pollution. 22
In both Third Circuit cases, the court offered limited interim enforcement relief for plaintiffs
while retaining the overall regulatory structure.
The D.C. Circuit’s next two remand without vacatur opinions focused on the larger
congressional scheme or issues of national significance that might have been disrupted by
vacatur of the underlying agency decision while, at the same time, encouraging prompt agency
action in response to remand. 23 In Rodway v. U.S. Department of Agriculture, the D.C. Circuit
held that the U.S. Department of Agriculture (USDA)’s allotment program for food stamps
should be upheld despite the agency’s failure to promulgate related rules through notice-andcomment rulemaking. 24 The court focused on “the critical importance of the allotment
regulations to the functioning of the entire food stamp system, on which over ten million
American families are now dependent to supplement their food budgets.” 25 The court ordered
USDA to complete the new rulemaking process for revising the allotment system within 120
days of its order and made it clear that it expected a different outcome on remand, one that went
further in terms of benefits provision than the adopted rule, in accordance with the court’s
interpretation of the congressional directive. 26 By contrast, in Concerned About Trident v.
Rumsfeld, a D.C. Circuit panel refused a request for an injunction of the U.S. Navy’s decision to
proceed with a “strategically important [atomic missile submarine system] project” given, in the
panel’s view, its good faith but ultimately inadequate attempt to fully comply with the National
Environmental Policy Act. 27 Here too, the court set a 120-day deadline for revision of the
agency’s earlier decision, an Environmental Impact Statement, but in this case the court
ultimately did not expect the agency’s reconsideration to produce a new course of action. 28
In the 1980s, some D.C. Circuit opinions employing remand without vacatur as a
remedial technique focused on the short-term nature of the regulations at issue in addition to the
harm that might result from vacating the challenged agency decisions. In Maryland People’s
Counsel v. FERC, for example, the per curiam decision found that FERC’s special marketing
program orders were discriminatory and “infected by a failure to come to grips with highly
relevant considerations urged by petitioners . . . .” 29 Nonetheless, the panel chose to remand
rather than vacate the discriminatory orders since they were set to expire in less than three

22

Sharon Steel Corp., 597 F.2d at 381 (citations omitted).
These two opinions were the only other cases in which remand without vacatur was clearly identified in the
1970s, although some early cases were identified wherein the court did not expressly vacate or set aside the
challenged agency decision. E.g., Nat’l Welfare Rights Org. v. Mathews, 533 F.2d 637 (D.C. Cir. 1975) (remanding
to the District Court for declaration of invalidity but not explicitly vacating eligibility rules for aid to families with
dependent children; finding an injunction to be unnecessary); Weyerhauser Co. v. Costle, 590 F.2d 1011 (D.C. Cir.
1978) (remanding a water pollution effluent limitation for notice-and-comment proceedings and not explicitly
vacating).
24
514 F.2d 809, 817 (D.C. Cir. 1975).
25
Id.
26
Id. at 818.
27
555 F.2d 817, 830 (D.C. Cir. 1976).
28
Id.
29
768 F.2d 450, 452 (D.C. Cir. 1985).
23

4

months after the decision. 30 Noting its recent similar action in a FERC case where issuance of
the mandate was stayed, the court stated its intention to offer only “limited amnesty” and
expressed its trust that FERC would retain the interim standards in future proceedings only upon
a showing that petitioner’s concerns were unfounded or outweighed. 31
Subsequent judicial interpretations of Maryland People’s Counsel characterize the
decision as one in which the court considered, in deciding whether to employ remand without
vacatur, “the disruptive consequences of an interim change that may itself be changed.” 32
Similarly, in American Federation of Government Employees v. Block, the D.C. Circuit upheld
interim poultry inspection regulations that violated the notice-and-comment requirements of 5
U.S.C. § 553(b) in an “unusual emergency situation,” but directed the U.S. Department of
Agriculture (USDA) to engage in notice-and-comment rulemaking to issue permanent final
regulations. 33 In both of these cases, the court expected the agency to alter its course of action
and treated remand without vacatur as only an interim remedy.
FROM GEORGETOWN TO ALLIED-SIGNAL: INCREASING APPLICABILITY AND
APPLICATION

Application of remand without vacatur in the D.C. Circuit spiked in the early 1990s. 35
These early cases were generally challenges to agency rules, with a few disputes over
adjudications. Professor Pierce attributes the increased application of remand without vacatur to
the Supreme Court’s 1988 decision in Bowen v. Georgetown University Hospital (hereinafter
Georgetown). 36 This case prohibited agencies from retroactively applying rules absent clear
congressional authorization, which Professor Pierce argues “almost invariably increases the
disruptive effects of vacation.” 37 The decision raises the stakes for agencies facing judicial
review of rulemaking, since they might not be able to fill regulatory gaps in the period between
vacation of rules and promulgation of revised rules. As Professors Strauss, Rakoff, and Farina
have observed, it also “raises the stakes for courts trying to craft an appropriate remedy.” 38
While use of the remedy did increase in the early 1990s, it wasn’t until the D.C. Circuit’s
1993 opinion in Allied-Signal, Inc. v. NRC, that the D.C. Circuit directly considered
Georgetown’s potential for enhanced disruptiveness in the context of rulemaking. 39 In some
cases from this time period, courts focused instead on equitable questions of whether disruption
in the regulatory regime from vacation would provide relief for the prevailing parties. 40 In other
30

Id. at 455.
Id.
32
E.g., Intl. Union, UMWA v. FMSHA, 920 F.2d 960, 967 (D.C. Cir. 1990).
33
655 F.2d 1153 (D.C. Cir. 1981). This opinion is a less-than-clear case of remand without vacatur, but it was
treated as such due the court’s requirement that the agency take follow up action in response to its opinion.
35
See Appendix A.
36
488 U.S. 204 (1988).
37
Richard J. Pierce, Jr. Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 75-78 (1995).
38
Daniel B. Rodriguez, Of Gift Horses and Great Expectations, 36 ARIZ. ST. L.J. 599, 623 (2004) (quoting PETER L.
STRAUSS, TODD D. RAKOFF, ROY A. SCHOTLAND, CYNTHIA R. FARINA, GELLHORN AND BYSE’S ADMINISTRATIVE
LAW: CASES AND COMMENTS 444 (9th ed. 1995)).
39
988 F.2d 146 (D.C. Cir. 1993). This case signals that the potential regulatory gap created by the court’s choice of
remedy is appropriately viewed as an aspect of potential disruption in the regulatory context.
40
E.g., Envtl. Def. Fund v. EPA, 898 F.2d 183 (D.C. Cir. 1990) (observing that no parties requested vacation and
that “to do so would at least temporarily defeat petitioner’s purpose”); Fertilizer Inst. v. EPA, 935 F.2d 1303 (D.C.
31

5

examples, the court found that remand without vacatur was appropriate not only because of the
disruptive consequences of vacation (particularly for parties who had come to rely on an
agency’s position) but also because the deficiencies of an agency administrator’s decision “go to
the adequacy of his stated explanation, rather than to the merits of the decision itself.” 41 These
findings are consistent with Professor Levin’s suggestion that employment of the remedy may
have grown in response to judicial concerns “in particular cases that a strong remedy like
vacation of a rule or order under review is disproportionate to the magnitude of the violation they
have found.” 42
Allied-Signal is widely considered to be the leading judicial articulation of the two factors
courts consider in determining whether to vacate agency action on remand: (i) the seriousness of
the deficiencies in the agency’s decision (i.e., the possibility of the agency rehabilitating its
decision on remand) and (ii) the disruptive consequences of vacatur. 43 In this case, the D.C.
Circuit considered challenges to a cost-recovery rule promulgated by the Nuclear Regulatory
Commission (NRC) under congressional mandate that the agency allocate costs for its regulatory
services “fairly and equitably” among regulated entities. 44 Petitioners argued that the NRC’s
failure to consider their inability to recoup fees from customers was inconsistent with this
requirement, as well as with the NRC’s treatment of certain other licensees. 45 The D.C. Circuit
agreed. Nonetheless, the court declined to vacate the rule given the conceivability that the NRC
could explain its varied treatment of different licensees and the “quite disruptive” consequences
of vacation, which would require a refund of collected fees and—in the wake of Georgetown—
would prevent the NRC from recovering those fees under a later-enacted rule. 46 Petitioners also
alleged that the NRC arbitrarily and capriciously failed to apportion generic costs of low level
radioactive waste disposal in accordance with actual waste generation. Here, the court gave
“little weight to the possibility that the Commission could pull a reasonable explanation out of
the hat” yet refrained from vacating the rule to avoid creating a windfall for licensees during a
period where the NRC would be unable to recover fees. 47
As the decision demonstrates, and consistent with earlier case law, either of the AlliedSignal factors is potentially dispositive in a given case and a court need not find that an agency
decision is capable of rehabilitation in order to avoid vacating a rule. Writing in 2003, Professor
Levin found that:
[T]he case law does not disclose a consistent pattern regarding the way in which
the two prongs of the Allied-Signal formula fit together. Sometimes the court
allows remand without vacation where it perceives a strong likelihood that the
agency can cure its previous error, even if the court thinks that vacating would
Cir. 1991) (exercising equitable discretion to permit exemption from regulatory reporting requirement to remain in
place on remand, remarking that “the only complaint about the exemptions is that they are not broad enough”).
41
UMWA Int’l Union v. MSHA, 935 F.2d 1200, 1203 (D.C. Cir. 1991) (citing prior similar cases). See ABA
Resolution 107B, supra note 1 at 2 (identifying reliance interests of parties in these cases).
42
Levin at 301, supra note 2.
43
Allied-Signal, 988 F.2d at 151 (“The decision whether to vacate depends on the seriousness of the order’s
deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an
interim change that may itself be changed.”) (internal quotation marks and and citation omitted).
44
42 U.S.C. § 2214(c)(3).
45
Allied-Signal, 988 F.2d at 148, supra note 39.
46
Id. at 151.
47
Id. at 152.

6

cause little disruption. Conversely, the court sometimes uses the device to head
off the disruptive impact of vacation, even if it discerns no particular indication
that the rule can probably be cured. 48
Thus, Allied-Signal should not be treated as establishing a two-factor test for determining
whether to employ remand without vacatur. The case is simply an articulation of two categories
of equitable factors courts that courts consider, at times together, in determining whether to
vacate an agency’s decision on remand.
CHECKOSKY AND DISSENT IN THE D.C. CIRCUIT

In the 1994 case Checkosky v. SEC, the D.C. Circuit heard a challenge to a rule
promulgated by the Securities and Exchange Commission to govern “improper professional
conduct.” 49 In a fractured per curiam opinion, the court remanded the rules to the Securities and
Exchange Commission (SEC) for further explanation. 50 All three panel judges wrote separately.
Judges Silberman and Randolph directly engaged questions raised for the first time by Judge
Randolph regarding the legality of remand without vacatur under the APA. Judge Randolph’s
separate opinion argued: “The remand-only disposition… is contrary to law. It rests on thin air.
No statute governing judicial review of agency action permits such a disposition and the
controlling statute—5 U.S.C. § 706(2)(A)—flatly prohibits it.” 51 Judge Randolph contended that
the plain language of the APA requires courts to “hold unlawful and set aside” or vacate agency
action found to be arbitrary and capricious because of inadequate explanation. 52
Judge Silberman responded that agency actions requiring further explanation on remand
need not be considered arbitrary and capricious. 53 In such settings, the language of the APA is
inapposite. 54 Secondarily, he questioned whether the APA requires setting aside agency action
deemed to be arbitrary and capricious and cited circuit precedent recognizing the court’s
remedial discretion not to vacate. 55 Judge Reynolds, concurring in part and dissenting in part,
found that the challenged SEC decision should be affirmed, and if remanded, “not vacated until
this court overrules it.” 56
Case law research presented later in the report indicates that the majority of judges
currently sitting on the D.C. Circuit are comfortable with the remedy of remand without vacatur
in limited circumstances. Nonetheless, several decisions have been issued since Checkosky in
which a minority of the D.C. Circuit judges—Judges Randolph, Sentelle, and most recently
Judge Griffith—have expressed continued or new concerns with the remedy. Judge Randolph’s
campaign against the remedy has been consistent, though he has added to his views as set forth
in Checkosky. In 2007, he opined that vacatur with a stay of the mandate is a more appropriate
judicial response than remand without vacatur in non-APA cases where the court has remedial

48

Levin at 380, supra note 2.
23 F.3d 452 (D.C. Cir. 1994).
50
Id. at 454.
51
Id. at 490 (Randolph, J., separate opinion).
52
Id. at 491.
53
Id. at 463 (collecting cases) (Silberman, J., separate opinion).
54
Id. at 465.
55
Id.
56
Id. at 496 (Reynolds, J., separate opinion).
49

7

discretion. 57 He has also recently criticized the court’s practice of employing the remedy in a
cursory fashion, without explanation. 58
Senior Judge Sentelle’s history with the remedy is more mixed. In Milk Train, Inc. v.
Veneman, he wrote a dissenting opinion adopting Judge Randolph’s literal interpretation of the
APA. 59 In addition to questioning the legality of the remedy under the APA, he argued that it is
“often, if not ordinarily, unwise” because it substitutes the court’s decision of an appropriate
resolution for that of the executive, acting through the departments or independent agencies to
whom the proposition was legislatively entrusted. 60 More recently, he authored an opinion for
the court in Honeywell International v. EPA, which held that the remedy is illegal under the
statutory review provisions of Clean Air Act. 61
Notably, and as discussed in detail later in the report, Judge Sentelle’s opinion in
Honeywell was withdrawn after reconsideration by the panel, on which Judge Randolph also
sat. 62 In August 2013, he wrote the opinion for the court in National Association of Clean Water
Agencies v. EPA, which remanded for further explanation without vacating EPA’s maximum
achievable control technology regulations for two subcategories of sewage sludge incinerators. 63
This subsequent application of the remedy by Judge Sentelle comports with the D.C. Circuit’s
precedent applying the remedy under the Clean Air Act. Whether he has also reconsidered his
position on the legality of the remedy under the APA remains to be seen.
Additionally, Judge Griffith recently expressed doubts regarding the advisability of
employing remand without vacatur without imposing a deadline for the agency to respond. In
the 2008 decision, In Re Core Communications, Inc., (discussed further in the case study on the
FCC) Judge Griffith wrote a concurring opinion to “urge future panels to consider alternatives to
the open-ended remand without vacatur.” 64 He expressly declined to take up the question of the
legality of the remedy under the APA. 65
SUPREME SILENCE: DECLINING TO DECIDE

As discussed in depth below, the D.C. Circuit and other appellate courts have continued
to use the remedy of remanding without vacating agency decisions despite concerns noted by
some of the D.C. Circuit judges. In doing so, they act without direct guidance on or endorsement
of the remedy by the Supreme Court. Rather than take up this issue, the Supreme Court has at
least twice declined to contribute to the conversation on remand without vacatur.

57

NRDC v. EPA, 489 F.3d 1250, 1262 (D.C. Cir. 2007) (Randolph, J., concurring).
Honeywell Int’l Inc. v. EPA, 374 F.3d 1363, 1374 (2004) (Randolph, J., concurring).
59
Milk Train, Inc. v. Veneman, 310 F.3d 747, 757 (D.C. Cir. 2002) (Sentelle, J., dissenting and expressing
agreement with Judge Randolph’s argument in Checkosky that the APA requires the court to vacate agency action
that is not adequately explained and thus is arbitrary and capricious), reh'g en banc denied, 2003 U.S. App. LEXIS
3736 (D.C. Cir. Feb. 27, 2003).
60
Id. at 758.
61
See infra notes 199-214 at accompanying text.
62
Id.
63
Nat’l Assn of Clean Water Agencies v. EPA, No. 11-1131, slip. op. at 43-44 (D.C. Cir. Aug. 20, 2013).
64
In re Core Communications, Inc., 531 F.3d 849, 862 (D.C. Cir. 2008) (Griffith, J., concurring).
65
Id.
58

8

Professor Levin’s 2003 article on the remedy documents internal correspondence
regarding remand without vacatur between Supreme Court Justices during their deliberations on
Georgetown. 66 This case did not directly address remand without vacatur, however Justice
Kennedy’s 1988 draft majority opinion in Georgetown originally contained language Professor
Levin describes as endorsing the ability of courts to, in Justice Kennedy’s words, “exercise their
equitable discretion to remand to the agency or to stay invalidation of the challenged regulation
pending curative rulemaking” in circumstances “where the exigencies of the case or the
importance of the policies served by a judicially invalidated regulation create a compelling need
for retroactive correction.” 67 Justice Scalia drafted a responsive memorandum asking Justice
Kennedy to remove that language (which would have been dicta) because of his concern with the
potential invitation to agencies “to seek exercise of ‘equitable discretion’ to let invalid rules
stand.” 68
Nearly twenty-five years later, in 2010, the Supreme Court turned down an opportunity to
step directly into the debate on remand without vacatur in rejecting a certiorari petition in
Council Tree Communications v. FCC. 69 This appeal from a decision of the Court of Appeals
for the Third Circuit, discussed in detail below, framed the question presented as: “Whether a
reviewing court has the discretion under Section 706 of the A.P.A to decline to set aside, or
provide any remedy for, unlawful agency action?”70 Although the Supreme Court declined to
take the apparent opportunity offered by petitioners in Council Tree to decide whether the APA
permits remand without vacatur, for good reasons explained later in the report, academics have
embraced the gauntlet gladly while also engaging in prudential conversations regarding the
advisability of the remedy. 71

B.

REVIEW OF THE ACADEMIC LITERATURE

In the decade after the Allied-Signal court’s articulation of two bases for remand without
vacatur and the Checkosky court’s debate regarding the legality of the remedy under the APA,
the topic of remand with vacatur generated a small but robust body of academic literature. 72
Academics have offered diverse perspectives on the remedy and covered substantial empirical
and theoretical ground, tackling topics ranging from regulatory ossification to legal and
prudential concerns to constitutional concerns relating to separation of powers. Notably, nearly
every examiner who has endorsed the remedy has offered prescriptions for improving its
application as a form of judicial relief. A review of the academic literature on remand without
vacatur is presented below (this reductive effort is sure to miss some of the finer points of
66

Levin, supra note 2.
Id. at 351 (quoting Justice Anthony Kennedy, draft op., Bowen v. Georgetown Univ. Hospital 11-12 (Nov. 22,
1988)).
68
Id. (citing letter from Justice Antonin Scalia to Justice Anthony Kennedy 1-2 (Nov. 28, 1988)).
69
619 F.3d 235 (3d Cir. 2010), cert. denied, 131 U.S. 1784 (2011).
70
Brief for Petitioner at i, Council Tree Commc’ns, Inc. v. FCC, 619 F.3d 235 (3d Cir. 2010), cert. denied, 131 U.S.
1784 (2011).
71
See text accompanying notes 252-259.
72
E.g., Kristina Daugirdas, Note, Evaluating Remand Without Vacatur: A New Judicial Remedy for Defective
Agency Rulemakings, 80 N.Y.U. L. REV. 278 (2005); Boris Bershteyn, Note, An Article 1, Section 7 Perspective on
Administrative Law Remedies, 114 YALE L.J. 359 (2004); Rodriguez, supra note 38; Levin, supra note 2.
67

9

discourse). This summary is intended to familiarize the reader with the key lines of reasoning in
the academic discussion, as well as to identify subjects ripe for further consideration, prior to
launching into an assessment of how the remedy has been used in the near-decade that has
elapsed since its last thorough examination. The remedy, it would seem, is due for a checkup.
ABA RESOLUTION 107B

In 1997, and in response to the debate over Checkosky, the American Bar Association’s
(ABA’s) Judicial Review Committee of the Section of Administrative Law and Regulatory
Practice announced it was about to undertake a project on remand without vacatur. 73 The project
ultimately produced ABA Resolution 107B, which makes both substantive and procedural
suggestions to courts considering the remedy. 74 Substantively, the ABA cautiously endorsed the
concept of remand without vacatur and advocated construing or amending the APA to permit its
use. The recommendation favored presumptive vacatur, which the ABA viewed as consistent
with judicial precedent establishing that “occasional impairments [in agency’s functions] are the
price we pay to preserve the integrity of the APA.” 75
Resolution 107B takes the position that a court “may exercise discretion in determining
whether or not to refrain from vacating the agency’s action pending the remand.” 76 Thus, while
the ABA articulated a number of special circumstances where remand without vacatur might be
warranted, these circumstances need not be construed as exhaustive or exclusive. These
standards draw upon Allied-Signal, other case law, and prior ABA positions on standards for
judicial review of agency action. They include:
a) non-preclusion of fair consideration of a central issue or necessary findings,
b) a substantial likelihood of remediation to a similar overall result, and
c) clear outweighing of the challenging party’s interest in relief by the harms of vacation
to non-governmental persons
i) with reasonable reliance interests or
ii) during the interim period on remand,
and which cannot be remedied after the agency error is corrected.
When remand without vacatur is employed, the ABA’s procedural recommendations advise
courts to consider: establishing timeframes for responsive agency action; extending statutory or
administrative deadlines for compliance; staying or overseeing enforcement actions; and
encouraging parties to address remedial issues when before the court or in supplemental briefing
if necessary and not unduly delaying. The report notes that these procedural recommendations
may not always be advisable, and suggests that the “court’s choices should be governed by
general equitable principles.” 77

73

Ronald M. Levin, “Vacation” at Sea: Judicial Remands and the APA, 21 SPG ADMIN. & REG. L. NEWS 4 (Spring
2006) (article by then-Committee Chair Ronald Levin soliciting comments on three questions: Is it Legal? Is it
Desirable? When Should It Be Used?).
74
ABA Resolution 107B, supra note 1.
75
Id. at 1, 5 (citing New Jersey v. EPA, 626 F.2d 1038, 1048 (D.C. Cir. 1980)).
76
Id. at 1.
77
Id. at 8 (citing Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)).

10

LEGALITY OF THE REMEDY

Debate over the legality of the remedy has been centered on judicial review under the
standards set forth in the Administrative Procedure Act at 5 U.S.C. 706(2). Resolution 107B’s
supporting report squarely tackled the legal status of remand without vacatur under the APA.
The report acknowledged but rejected the literal interpretation of the provision offered by Judge
Randolph, which would compel courts to set aside action found to transgress 5 U.S.C. § 706(2)’s
review standards.
The ABA Administrative Law Section’s Report cited as support for this proposition the
Supreme Court’s 1943 decision in Hecht v. Bowles, which rejected legislation compelling courts
to enjoin legal violations of price control regulation and required an “unequivocal statement of
[legislative] purpose” to override a strong historical tradition of equity practice. 78 For several
reasons, the ABA Administrative Law Section’s Report found Congress’ intent to curb judicial
remedial discretion 5 U.S.C. § 706(2) equivocal. 79 These arguments acknowledge the literal
directive of the first sentence but point to other language in the text of § 706(2) to support a
permissive reading of the provision. First, the last clause of § 706(2) directs courts to take “due
account” of the rule of prejudicial error. 80 Second, § 706(2) is constructed of “open-ended
phrases such as ‘arbitrary and capricious,’ ‘substantial evidence,’ and ‘unreasonably delayed’
which plainly call for judicial construction and adaptation. . . .” 81
One commentator, Brian Prestes, responded to these arguments by reiterating the clear
statement in first sentence of § 706(2). 82 He engages the claim that the clause’s provision for
courts to take account of the rule of prejudicial error supports remand without vacatur. Under his
theory, this limited direction makes the inference that vacation is otherwise mandatory even
stronger. He cites the Supreme Court’s opinion in TVA v. Hill for the proposition that explicit
exceptions to a statutory directive demonstrate the non-existence of other, implicit exceptions.83
He concludes that, provisional context notwithstanding, actions that violate an APA standard of
review must be vacated under § 706(2).
The ABA Administrative Law Section’s Report also looked outside the text of the APA’s
judicial review provision to support its argument that the remedy should be legal. It pointed to
28 U.S.C. § 2106, which gives courts “a free hand” to fashion remedies on review of decisions
from lower courts, and to 5 U.S.C. § 705, authorizing similar leeway to decide whether to stay
administrative actions while judicial review is pending, as examples of congressional support for
discretion. 84 Prestes found these arguments unpersuasive. He argued that judicial discretion to
78

Id. at 4 (citing Hecht v. Bowles, 321 U.S. 321, 329-30 (1943)). The statutory provision at issue in Hecht
provided: “Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts
or practices which constitute or will constitute a violation of any provision of section 4 of this Act, . . . he may make
application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing
compliance with such provisions, and upon a showing by the Administrator that such person has engaged or is about
to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be
granted without bond.” 321 U.S. at 321-22.
79
ABA Resolution 107B and Section Report, supra note 1, 4-5.
80
Id. at 4.
81
Id.
82
Brian S. Prestes, Remanding without Vacating Agency Action, 32 SETON HALL L. REV. 108 (2001).
83
Id. at 135-36 (citing TVA v. Hill, 437 U.S. 153 (1978)).
84
ABA, Resolution 107B, supra note 1, 4.

11

review decisions of “constitutionally equal” courts, a built in function of the judicial process, is
distinguishable and should not be used to infer discretion to deviate from congressional
directives. Finally, the ABA Administrative Law Section’s Report observed that the legislative
background of the APA does not specifically indicate congressional intent to curb remedial
discretion, while the Attorney General’s Manual on the APA indicates that § 706 simply
“restat[ed] the present law” of judicial review” (including Hecht). 85 Prestes argues that silence
should not be relied upon as a way to undercut what he construes as clear statutory language.
Prestes acknowledged but rejects the argument that the APA’s literal interpretation can be
escaped by a finding of inadequate explanation without also finding an unmet standard of review
(i.e., an action is poorly explained so it cannot be determined whether it is supported by
substantial evidence). In his view, agency action is arbitrary where the court has to guess about
its justification or support. Professor Levin has also expressed skepticism about the semantics of
not characterizing an inadequately explained agency decision as arbitrary and capricious. 86 Both
observe that this explanation cannot justify all cases where courts have employed remand
without vacatur, such as where a rule suffers from clear procedural defects. 87
In general, scholars and many judges do not favor the literal interpretation of the APA.
Professor Levin has criticized it for “failure to give any significant weight to the canon against
repeals of equity power . . . [which] rests on a substantial body of precedent – not, as Prestes’
argument suggests, the Hecht case alone.” 88 As discussed in the next section, Levin’s own
attention to this canon is considerable.
LEVIN ON EQUITABLE REMEDIAL DISCRETION

In 2003, Professor Levin authored an article on remand without vacatur in which a
central task was to find support for the remedy given his argument that equities may favor
remand without vacatur in circumstances where an agency’s action has been held arbitrary and
capricious or in procedural error. 89 This endeavor produced an original and substantial
exposition on the breadth of the federal judiciary’s equitable authority in administrative law. In
summary, Professor Levin’s article makes the following affirmative arguments:
The Equitable Remedial Tradition in Administrative Law: Equitable principles are of
central relevance to administrative law given their historical application by courts to enjoin
federal administrative action and given modern “nonstatutory” review authorized in the A.P.A, 5
U.S.C. § 703. In modern statutory review and under relevant Supreme Court case law, courts
proceed as if they have equity powers and under equitable principles, even if this is not explicitly
provided for by, or is arguably contrary to, statutory directives.
The Modern Prevalence of Remedial Discretion: Courts have employed flexible
remedies in a variety of modern administrative or public law contexts, “reflecting a pattern into

85

Id. at 4-5.
Levin, supra note 2 at 307.
87
Prestes, supra note 82 at 133 (citing Ronald M. Levin, Vacation at Sea: Judicial Remands and the APA, 21
ADMIN. & REG. L. NEWS 4 (Spring 2006)).
88
See Levin, supra note 2 at 311 n.83.
89
Levin, supra note 2 at 308.
86

12

which remand without vacation can fit comfortably.” 90 Examples include: stay of an
administrative action while an appeal is pending, allowing some agency actions to stand despite
violations of the Federal Advisory Committee Act or impermissible ex parte contacts, and
allowing agencies extra time to come into compliance with statutory deadlines. Courts have also
sometimes denied litigants complete relief despite finding statutory violations, such as under the
de facto officer doctrine and in the Supreme Court’s stay of the issuance of its mandate—to
permit Congressional action—for thirty days in Buckley v. Valeo and three months in Northern
Pipeline Construction Co. v. Marathon Pipe Line Co. 91 Severability, guided in application by
legislative intent, offers an additional illustration. Finally, an analogy may be drawn to cases
extending under inclusive benefits to classes of individuals not technically covered by a law
granting benefits in order to meet due process requirements.
Equitable Discretion to Withhold Injunctive Relief: The Supreme Court has employed
equitable balancing tests to withhold injunctive relief despite past statutory violations and even
given continuing ones, such as in Weinberger v. Romolo-Barcelo, where the court found that
withholding injunctive relief better fulfilled the purposes of the underlying statute. 92
Nonetheless, case law suggests that such equitable balancing is not appropriately used to
override a clear statutory directive. Administrative law cases may provide greater flexibility
because an agency’s discretionary action, rather than a statutory breach, is at issue. This is
particularly true where remand without vacatur supports the substantive thrust of a statute,
against which injunctions may work.
Professor Levin acknowledges that his advocacy for remedial discretion is likely to raise
concerns by those who are wary of equitable balancing, judicial encroachment on the executive
branch, and the erosion of the rule of law and availability of relief for litigants. 93 Accordingly,
his article turns next to an exploration of theoretical legal challenges to the remedy, a discussion
that highlights the undercurrent of constitutional tension in case law regarding equitable
remedies in general. As set forth below, others have more directly raised constitutional concerns
specific to remand without vacatur.
CONSTITUTIONAL CONCERNS

Detractors of remand without vacatur have raised a variety of credible concerns that
might loosely be described as constitutional. The “constitutional concerns” characterization is
imposed as a framing device, to indicate that after a close examination of these seemingly
disparate strands of analysis one will find common roots in core constitutional principles such as
separation of powers and original design. The rich scholarship that surrounds these familiar
principles, while generally not directly engaged in most of the literature critiquing remand
without vacatur, can help us understand the discomfort of some commentators and judges with
the remedy.
For those who accept a literal interpretation of the APA, refusals to vacate action found to
be arbitrary and capricious under the Administrative Procedure Act “side-step the separation of
90

Levin, supra note 2 at 323.
Buckley v. Valeo, 424 U.S. 1 (1995); Northern Pipeline Construction Co. v. Marathon Pipe Line Co. 459 U.S. 813
(1982).
92
456 U.S. 305 (1982).
93
Levin, supra note 2 at 345.
91

13

powers by favoring remedies unanchored in the text of the APA.” 94 In this view, “[t]he APA’s
judicial oversight and procedural hurdles are part of an interbranch compromise the terms of
which are matters of constitutional, not merely prudential, importance.” 95 The equitable
response to this argument is somewhat unsatisfactory, in that it presupposes the lack of a clear
congressional directive in the APA. Moreover, judicial findings of broad equitable authority are
not immune to claims of self-aggrandizement by scholars such as Dean Daniel Rodriguez. 96 To
borrow the words of Professor Levin (who was speaking more generally of equitable remedies):
“For more than sixty years, courts have drawn upon the traditions of equity to support a broad
understanding of the remedial powers in federal courts in administrative law cases – even in the
face of arguably contrary statutory directives.” 97
Dean Rodriguez’s concerns regarding judicial activism have led him to consider the
possibility that courts will use remand without vacatur as a tool for their own ends, to intervene
in the minutiae of agency decision-making processes. 98 He posits that the reduced intrusiveness
of remand without vacatur, when compared to vacatur, makes “courts feel more liberated to
engage in some sort of review at all.” 99 This characterization of the remedy stands in stark
contrast to that previously presented by commentators such as Professor Sunstein, who called it
“administrative law’s newest species of minimalism” and concluded that it was democracypromoting “insofar as [judges] attempt to ensure that agency decisions are based on grounds that
are both transparent to the public and sufficient to justify the regulation in light of statutory
criteria.” 100 Professor Levin’s discussion of underenforcement of administrative law values
makes a similar claim as well as offers a general defense of discretionary remedial devices that is
arguably responsive. 101 Professor Levin posits that concerns over judicial activism are
somewhat at odds with advocacy for vigorous judicial review of agency action and concludes
“the argument that remand without vacation should be shunned in order to foster greater judicial
deference to agencies seems unlikely to command wide support.” 102
Boris Bershteyn’s 2004 student note on remand without vacatur focuses not on how
courts will behave given their own preferences, but rather on how judicial remedial authority can
serve to align agency action with the democratic equilibrium reflected in the process of
legislative bicameralism and presentment. 103 Bershteyn’s analysis concludes that remand
without vacatur is of concern where it permits agencies to use their discretion to enact policies
that move away from statutory mandates and instead move towards policy positions favored by
the Executive. In light of these concerns, he advocates for a presumption against the remedy,
which could be overcome if there is reason to believe the agency would not respond on remand

94

Prestes, supra note 82 at 145-46.
Id. at 128.
96
Rodriguez, supra note 38.
97
Levin, supra note 2 at 323.
98
Rodriguez, supra note 38.
99
Id. at 635.
100
Cass. R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 MICH. L. REV 313, 374 (1999).
101
See Levin, supra note 2 at 360-62.
102
Id. at 362.
103
Bershteyn, supra note 72.
95

14

in a way that strays from results compelled by bicameralism and presentment, such as if the
court’s order made readoption of the remanded agency policy unlikely. 104
These varied concerns implicate constitutional values, but it is notable that their
proponents do not directly assert that the remedy is unconstitutional. Rather, their apprehensions
lead both Rodriguez and Bershteyn to invite courts (and commentators) to consider the ways that
“courts articulate and apply their remedial powers.” 105 Commentators have done so regarding
remand without vacatur, weighing in not only on prudential considerations but also with
recommendations for judicial restraint.
PRUDENTIAL CONSIDERATIONS AND RECOMMENDATIONS OF RESTRAINT

Academics debating the advisability of remand without vacatur have made pragmatic
arguments in either direction. Those who find at least occasion to support the remedy (the ABA,
Daugirdas, Levin, Pierce) point to the benefits that accrue when application of the device
enhances stability in the regulatory regime or in government regulated markets, protects reliance
interests, avoids regulatory gaps, allows agencies to continue collecting user fees, and ensures
continued provision of public benefits (including the benefits of regulation). Further, remand
without vacatur has been said to facilitate judicial minimalism and to reduce agency burdens by
allowing them to revisit prior decisions rather than start from scratch. 106 Those who are wary of
remand without vacatur (Prestes, Rodriguez, Bershteyn) argue that it deprives litigants of relief
from improper or inadequately reasoned agency decisions, dissuades agency compliance with
waived legal requirements, reduces incentives to challenge improper or poorly reasoned agency
behavior, encourages judges to engage in counter-factual speculation regarding potential results
on remand, promotes judicial activism, and allows deviation from legislative directives.
It is challenging to identify, ex ante and absent a sense of particular interests in a specific
case, the relative advantage employment of the remedy might give to agencies, the President,
Congress, or allegedly activist courts. The advantages of remand without vacatur can accrue to
agencies (continuing collection of user fees), regulated entities (market stability, protection of
reliance interests), and the general public (avoidance of regulatory gaps, continued provision of
benefits, market stability). The remedy may even provide some minimal benefit to judges who
appreciate avoiding the “strong remedy” of vacation where it is “disproportionate to the
magnitude of the violation they have found.” 107 Harms may accrue to litigants and regulated
entities that are subject to flawed agency decisions and the general public due to judicial
tolerance of agency shirking. As a general rule, remand without vacatur will almost always
benefit agencies that avoid the harsh remedy of vacatur and having to start their decision making
processes over. This benefit may be tempered, however, by the increased costs agencies incur in
responding to judicial directives to fix errors and more speculative harms that might ensue in the
long-term from reduced legal compliance (i.e., a potential increase in the costs of litigation over
poorly reasoned rules). Scholars do not uniformly view the benefit of remand without vacatur to
agencies as an objective good, since it may come at the expense of legislative compromises
(Bershteyn) or administrative law values (Prestes, discussed in Levin).
104

Id. at 384.
Rodriguez, supra note 38 at 637.
106
Sunstein, supra note 100 at 373.
107
Levin, supra note 2 at 301.
105

15

It is difficult to synthesize the positions discussed so far into contextual rules to guide
judges in application of the remedy. The existing judicial framework, as articulated in AlliedSignal, leaves substantial room for judicial discretion. As Professor Pierce says, in a point
scholars are fond of repeating, “I am not sure I have ever encountered a case in which a court
held that an agency failed to comply with the duty to engage in reasoned decisionmaking in some
respect . . . and in which the court could reach a good faith conclusion that there is no “serious
possibility that the [agency] will be able to substantiate its decision on remand.” 108
Perhaps because a case-specific inquiry into the advisability of the remedy of remand
without vacatur could lead to variable conclusions regarding its favorability in application, even
proponents of the remedy have sought to cabin the discretionary exercise of the remedy. 109
Professor Levin writes, speaking generally in context of equitable remedies, “discretion has its
hazards as well. Its exercise calls for coherent standards, not just the unguided conscience of the
particular reviewing court.” 110 Scholars advocating for prudential limitations on remand without
vacatur typically identify “special circumstances,” to use the ABA’s terminology, in which they
are comfortable with the remedy. Circumstances identified as potentially appropriate include
those where:
•
•
•
•
•
•
•

There is a substantial likelihood that the agency will be able to rehabilitate its decision on
remand (ABA 107B, Daugirdas, Levin, Sunstein). 111
Potential disruption, including to government interests, is serious (ABA 107B, Daugirdas,
Levin, Sunstein).
The interest in obtaining relief by the challenging party is clearly outweighed by harms to
non-governmental persons 1) with reasonable reliance interests or 2) during the interim
period on remand, and where such harms are not easily abated (ABA 107B).
Vacation would not further the interests underlying the legislation (Daugirdas, Revesz
and Livermore).
Rules are longstanding or make only minor or incremental changes, rather than adopt a
wholesale change in direction (ABA Administrative Law Section’s Report).
Fair consideration of a central issue or necessary findings on the part of the agency is not
precluded (ABA 107B).
It is likely that the agency’s response on remand will align with legislation delegating the
decision to the agency (Bershteyn).

Procedural protections for which consideration is advised in those situations where remand
without vacatur is employed include:
•
•

Requiring an explicit judicial analysis prior to application of the remedy (Daugirdas).
Imposing the burden of proving the remedy is appropriate on the party requesting relief
(ABA Administrative Law Section’s Report).

108

Pierce, supra note 37 at 76.
Daugirdas, supra note 72; Bershteyn, supra note 72; Levin, supra note 2; Sunstein, supra note 100; ABA
Resolution 107B and Section Report, supra note 1.
110
Levin, supra note 2 at 386.
111
Professor Levin argues that the case for vacation strengthens as rehabilitation becomes less likely. Levin, supra
note 2 at 379-80.
109

16

•
•
•

Requesting briefing or even a hearing on the appropriateness of the remedy in a particular
case (ABA 107B, Daugirdas).
Bifurcating the decision on the merits from the decision on the remedy (Daugirdas).
Considering protections for prevailing parties, such as imposing deadlines for responsive
agency action, where appropriate (ABA 107B).

The extent to which these suggestions have been adopted is discussed further later in the report.
Notably, the literature on remand without vacatur offers relatively little consideration of
prudential alternatives to the remedy, other than simple remand or vacatur. Professor Levin
briefly analyzes two potential remedies: vacation of the rule with a stay of the mandate, which he
concludes works in simple cases where the decision is quickly reparable but not in complex
cases, and interim rulemaking invoking the “good cause” exception to time consuming
procedural requirements, which he notes offers only prospective relief and also carries potential
risks. 112 The ABA Administrative Law Section’s Report too finds the remedy of interim
rulemaking to be a “not entirely satisfactory alternative.” 113 Professor Sunstein would have
courts employ remand without vacatur where rehabilitation of the original rule is possible and
agencies engage in interim rulemaking where serious risks to people are likely during the interim
period post-remand and prior to agency follow-up action. 114
EARLY EMPIRICAL OBSERVATIONS

It is worth observing that this paper’s next effort adds to an existing set of studies
wherein scholars have examined judicial applications of remand in order to better understand
their practical effects. One of the earliest examples of this effort was a 1994 “mini-survey” by
Judge Wald, who then sat on the bench of the D.C. Circuit, of a year of the court’s rulemaking
reviews for rules “of nationwide application.” 115 She found that the agency’s judgment was
upheld entirely in more than half of the thirty-six identified rulemaking reviews and that in most
of the remaining cases the key portions of a rule were upheld. Judge Wald also identified cases
in which the court remanded without vacating the rule. 116 These results led her to conclude that
judicial review of agency rulemaking was not “unduly cumbersome.” 117
In 2000, Professor Bill Jordan studied sixty-one D.C. Circuit cases remanding agency
legislative rules between 1985 and 1995. 118 Consistent with Judge Wald’s findings, his
conclusion was that agencies tended to recover fairly quickly in response to remands and that
hard look or arbitrary and capricious review “did not significantly impede agencies in the pursuit
of their policy goals during the decade on review.” 119 He found that the D.C. Circuit explicitly
employed remand without vacatur or stayed the mandate vacating a rule in approximately twenty
112

Id. at 303-04.
ABA Resolution 107B and Section Report, supra note 1 at 3 n. 6.
114
Sunstein, supra note 100 at 372-73.
115
Patricia M. Wald, Regulation at Risk: Are Courts Part of the Solution or Most of the Problem?, 67 S. CAL. L.
REV. 621, 632-639 (1994).
116
Individual cases were not specified. Id. at 638.
117
Id. at 639.
118
William S. Jordan, III, Ossification Revisited: Does Arbitrary & Capricious Review Significantly Interfere with
Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 N.W. U. L. REV. 393 (2000).
119
Id. at 396.
113

17

percent of cases. 120 Because of the ability of agencies to recover quickly or retain their rules,
Professor Jordan did not support sweeping changes in the structure of reviewing institutions or
the standard of review for agency decisions as a response to allegations of regulatory ossification
by judicial review. Rather, given the probability with agencies were able to offer successful
explanations on remand, he suggested serious consideration of expanded use of remand without
vacatur and/or stay of the judicial mandate. 121
Remarkably, Professor Jordan observed that in twenty-eight of the sixty-one rulemaking
remands “the court did not explicitly state whether or not it was vacating the rule at issue.”122
He treated ambiguous remands as if the rule was vacated but also observed that agencies may
respond to remedial ambiguity by assuming that the rule remains in effect (even if this has
engendered “some hesitation” in enforcement). 123 Empirical research in a 2005 student note by
Kristina Daugirdas—examining remand without vacatur in the D.C. Circuit in the decade
following Allied-Signal—also highlights ambiguous remands. 124 She calls for judges to explain
their use of the remedy, and argues that doing so permits evaluation of “whether the courts are
using [remand without vacatur] appropriately and effectively.” 125
The empirical study that follows examines the case law not to evaluate the merits of
remand without vacatur, but rather to check up on the current state of the remedy. A central
purpose of this effort is to diagnose whether early prescriptions for its improved application have
actually offered judicial solutions. This inquiry is newly informed by consideration of the
remedy in the adjudicatory context, as applied under non-APA standards of review, and in light
of the new perspectives offered by agency attorneys.

120

Id. at 396, 441.
Id. at 441.
122
Id. at 410.
123
Id. at 411, 427 (citing as an example the EPA’s response to the D.C. Circuit’s decision in Solite Corp. v. EPA
952 F.2d 473 (D.C. Cir. 1991)).
124
Daugirdas, supra note 72 at 296-97.
125
Id. at 297.
121

18

II.

REMAND WITHOUT VACATUR IN THE D.C. CIRCUIT

Having explored the early history of the remedy and reviewed the wealth of literature on
remand without vacatur, the report now turns to an examination of more recent federal case law
addressing remand without vacatur. Section II.A explains the scope and methodology employed
used to develop the dataset of federal cases. Section II.B presents general findings and
conclusions from analysis of this dataset.

A.

METHODOLOGY

SCOPE OF RESEARCH

Understanding recent applications of remand without vacatur required updating existing
empirical research. Given the lack of direct Supreme Court engagement on this issue, research
focused on case law from lower courts. Research methodology design required balancing of
several considerations, including temporal and geographic scope. The set of cases selected for
detailed analysis was limited to decisions issued by the D.C. Circuit in which the remedy of
remand without vacatur was discussed or employed from 2000 through 2013.
The starting point for detailed case law research was set, somewhat arbitrarily, at the year
2000, the mid-point in the Daugirdas study. The geographic scope was chosen because existing
empirical studies of remand without vacatur focused on the D.C. Circuit, so that this examination
could update those studies. 126 Additionally, a review of scholarship on remand without vacatur,
some simple case law searches, and other informal observations indicated that the remedy was
used or discussed most frequently in the D.C. Circuit. 127 This study employs an approach similar
to that undertaken in the Daugirdas study—a survey of case law in the area based on citing
references.
Systematic examination of every merits based termination of administrative agency
appeals decided in the D.C. Circuit since 2000 was infeasible. First, it is difficult to construct
disposition-based queries using commercially available legal databases such as Lexis or
Westlaw. 128 Additionally, there is no way to query merits based dispositions of administrative
appeals through the Administrative Office’s Public Access to Court Electronic Records
126

Professor Kristina Daugirdas published the most recent empirical study of remand without vacatur in 2005 as a
student note. Id.
127
The remedy is also used in U.S. District Courts in the D.C. Circuit, but the appellate court was chosen for
consistency with earlier examinations and given the precedential value of appellate case law on the court below.
Additionally, a review of cases citing Allied-Signal in the U.S. District Court for the District of Columbia identified
only a handful of cases employing remand without vacatur.
128
See, e.g., Jordan, supra note 118, 408 n.82. Even if merits based terminations could be queried, the scope of
review would be substantial given that some remand without vacatur cases would almost certainly fall into the
affirmance/enforcement categorization used by the U.S. Courts (1,080 of 1,950 cases in the D.C. Circuit between
Jan. 2000 and July 2013) because it includes merits terminations affirmed in part and reversed in part.
Administrative Office of the U.S. Courts, STATISTICAL TABLES FOR THE FEDERAL JUDICIARY, Table B-5 (Dec. 31,
2012) (2012 data). These sums were aggregated from Table B-5 of the statistical tables in historical Administrative
Office reports dating to 2000. Past reports are available at
http://www.uscourts.gov/Statistics/JudicialBusiness/archive.aspx.

19

(PACER) system 129 or on the Government Printing Office’s (GPO’s) Federal Digital System
(FDSys). 130
RESEARCH APPROACH

An initial dataset of cases discussing remand without vacatur was prepared as a starting
point for subsequent detailed case law research. 131All case law research was conducted using
Lexis® legal databases. The initial dataset of cases included:
•
•
•
•
•

All D.C. Circuit cases cited or discussed in the scholarly literature and that specifically
examined remand without vacatur. 132
All D.C. Circuit opinions that referenced the relevant scholarly literature, as identified
through use of Lexis’s® Shepard’s® Citations Service (Shepard’s).
Cases identified through a series of text searches that were conducted using relevant
language. 133
D.C. Circuit cases citing Allied-Signal, Inc. v. NRC or Checkosky v. SEC for their
discussion of remand without vacatur, identified by Shepardizing both cases. 134
A few additional cases identified by attorneys at the Federal Communications
Commission and the Federal Energy Regulatory Commission.

Each case in the initial dataset that was decided in 2000 or later was then Shepardized and all
cases in the D.C. Circuit reviewed. 135 All D.C. Circuit opinions that expressly employed remand
without vacatur, as well as all opinions that did not employ the remedy but in which the court
discussed whether to employ remand without vacatur were added to the dataset. This process
was repeated for all cases the first search identified, and then repeated for each subsequently

129

PACER, PACER USER MANUAL FOR ECF COURTS 54-62, 86-92 (June 2012), available at
http://www.pacer.gov/documents/pacermanual.pdf (describing query options and information available from the
U.S. Courts of Appeals); PACER, XML Tags, Appellate CM/ECF V.3.1, PACER docket report and case/party
searches (Feb. 23, 2010), available at http://www.pacer.gov/documents/pacer_xml_apv3.1.pdf.
130
GPO recently began hosting opinions of many federal courts online, after a successful pilot program, however the
GPO site lacks full PACER metadata and similarly cannot be queried for merits based dispositions or administrative
appeals. See Stephanie J. Tatham, 2013 Brings Increased Public Access to Judicial Branch Opinions, ACUS
Administrative Fix Blog (Feb. 14, 2013), available at http://www.acus.gov/newsroom/administrative-fix-blog/2013increased-public-access-to-judicial-branch-opinions; G.P.O., United States Courts Opinions Metadata Fields and
Values, available at http://www.gpo.gov/help/united_states_courts_opinions_metadata_fields_and_values.htm
(accessed Aug. 27, 2013).
131
Cases were included regardless of the type of agency decision at issue (i.e., rulemaking, adjudication, etc.) or the
formality of the agency decision in terms of procedural protections (i.e., formal adjudication versus informal
adjudication).
132
See Daugirdas, supra note 72; Bershteyn, supra note 72; Rodriguez, supra note 38; Levin, supra note 2; Prestes,
supra note 82. (Jordan excluded because examined cases pre-2000).
133
E.g., “remand without vacatur”, “without vacatur”, “without vacation” in Lexis database USAPP; results from
district and bankruptcy courts were not recorded.
134
Allied-Signal, supra note 39; Checkosky, supra note 49.
135
Shepard’s research was completed in late July 2013, and thus decisions from Aug. 2013 or later may not be
reflected in the survey dataset. With thanks, Christy Walsh, Special Counsel at the Federal Energy Regulatory
Commission, and Professor Levin helped identify two post-July 2013 decisions in the D.C. Circuit employing
remand without vacatur that were also included in the dataset.

20

retrieved case that discussed or employed remand without vacatur until all post-1999 cases in the
dataset had been Shepardized and all citing references examined. 136
The methodology identified seventy-three cases employing remand without vacatur in the
D.C. Circuit between 1972 and 2013, forty-one of which were decided between 2000 and
2013. 137 These cases are listed in the Appendix A. It is not expected that this research
methodology captured every case employing remand without vacatur in the D.C. Circuit during
the study time period. Nonetheless, the review identified a broad swath of cases in which
remand without vacatur was discussed or employed. Taken together, these cases present a
reasonable picture of remand without vacatur in the D.C. Circuit, on which helpful inferences
may be based.
CATEGORICAL ANALYSIS

Once a dataset of surveyed cases was compiled, each was analyzed in order to answer
several questions:
• Was remand without vacatur employed or discussed or was the remand ambiguous as to
vacation?
• Which agency was involved?
• Which judge authored the panel’s decision?
• Was there relevant subsequent litigation (i.e., pertaining to mandamus petitions or
affirming the agency’s action on remand)?
For each case decided after 1994:
• Did the decision cite Allied-Signal, and even if not, did it discuss the Allied-Signal
factors?
For post-1999 cases:
• What was the general subject matter of the agency action at issue?
• Did the case involve a rule or adjudication?
• What statutory provision(s) provided the basis for judicial review?
• Did the decision discuss the factors for consideration suggested in the ABA’s Resolution
No. 107B?
• Did the court stay compliance deadlines or enforcement actions?
• Did the court impose a timeline on the agency’s response to the remand order?
This categorical analysis produced several insights discussed in more detail below.

B.

RESEARCH RESULTS

Results of the case law survey are detailed below, by question asked in the categorical
analysis. The presentation below reflects the Question (and the set of cases to which the
question was applied).

136

This methodology is similar to of the 2005 Daugirdas study. See Daugirdas, supra note 72.
Includes two older unpublished cases and some very recent decisions that have not yet been published (and may
not be).
137

21

RWV IN THE D.C. CIRCUIT

Frequency (all identified cases): The remedy has been employed on average at least
once annually since 1993. Identified use has averaged three times per year since 2000. The
highest annual observed incidence was six, in 1991 and again in 2002. In comparison, merits
based terminations of administrative appeals in the D.C. Circuit averaged 150 per year between
2000 and 2012. 138 Even while accounting for potential under inclusiveness in the studied dataset
this indicates that remand without vacatur is an occasional rather than a common remedy.
More than twenty additional cases were identified in which the court discussed but
declined to remand without vacatur, instead choosing to vacate the challenged agency action. 139
Over twenty cases were identified, twelve of which were decided after 2000, in which an
agency’s decision was remanded without specifying whether it was vacated. 140 This finding is
consistent with earlier similar findings by Professor Jordan and Kristina Daugirdas. 141 Cases
with ambiguous remands were not specifically sought out, however, and this figure is almost
certainly under representative of the total set of cases lacking specificity on remand.
Use by Agency (all identified cases): Remand without vacatur has been employed in
cases involving more than twenty federal agencies, but for most agencies it does not occur
frequently. 142 Less than half of these agencies (eight of twenty) were subject to the remedy in
the D.C. Circuit more than once over the entire time period. Observed uses of the remedy by
agency were: EPA (28); FERC (7); FCC (7); Department of Agriculture (4); Department of
Health & Human Services (4); Department of Labor (all in the Mine Safety Health
Administration) (4); Securities and Exchange Commission (3); Nuclear Regulatory Commission
(2); and Food and Drug Administration (2). 143
As evident from these figures, EPA—by far—is the federal agency most commonly
subject to remedial orders from the D.C. Circuit that employ remand without vacatur. Between
1972 and 2013, the remedy was used four times as frequently with EPA as with any other
agency. The remedy was observed in an average one to two EPA cases per year, and a total of
eighteen EPA cases (nearly half of the all agency total) since 2000. EPA was also the most
common agency in the set of cases in which the court considered but declined to employ the
remedy (ten of twenty-three cases). FERC and FCC are the only two other agencies that were
subject to the remedy in the D.C. Circuit more than five times total: seven times for FCC (four
times since 2000) and seven times for FERC (three times since 2000). Taken together, these
agencies were involved in forty-two of the seventy-three cases identified as employing remand
without vacatur, and twenty-five of the forty-one post-1999 decisions.

138

Supra note 128.
E.g., NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
140
E.g., Lone Mountain Processing, Inc. v. Sec’y of Labor, 709 F.3d 1161 (D.C. Cir. 2013).
141
See Jordan, supra note 118; Daugirdas, supra note 72.
142
NLRB remands, which are typically not vacated and for which enforcement is denied, and remands under the
Regulatory Flexibility Act, which permits remand without vacatur, were excluded. E.g., United States Telecom
Ass’n v. FCC, 400 F.3d 29 (D.C. Cir. 2005) (remanding without vacatur under the Regulatory Flexibility Act).
143
Several agencies (FMSHA, DEA, MSHA, NRC, OPM, OSHA) have not been subject the remedy since the 1990s
or earlier.
139

22

Use by Judge (all cases): A majority of sitting D.C. Circuit judges (ten) have written
precedential opinions employing remand without vacatur. 144 The court has employed the remedy
in at least nine decisions by Judge Williams; nine by Judge D. Ginsburg, five by Judge Rogers,
five by Judge Silberman, three by Judge Edwards, two by Chief Judge Garland and Judges
Kavanaugh, Tatel and Sentelle, and once by Judge Griffith. The remedy has been used most
frequently—twenty-three times—in per curiam decisions of the court, over occasional dissents.
Panels in these decisions have naturally involved varied configurations of the D.C. Circuit
judges. Judge Brown has never authored a signed opinion employing the remedy. However, it
has been used in five per curiam decisions issued while she was on the panel. In one of these
cases, she wrote a separate concurrence that expressed full support for the per curiam opinion,
but took issue with an earlier decided precedential case issued by the Circuit. 145 Judges Sentelle,
Randolph and Griffith are the only sitting judges that have expressed reservations about the
remedy in their opinions. These decisions are discussed in more detail in the next section.
Type of Agency Decisions (post-1999 decisions): Since 1999, remand without
vacation has been used more than twice as often in cases challenging agency rules (twenty-nine)
than those challenging adjudicatory decisions (twelve). 146 The case law does not distinguish
between these two categories of agency decisions in deciding whether to employ remand without
vacatur. Challenged agency actions varied in nature, spanning subjects ranging from
environmental air quality regulations, to agency cost recovery or fee schedules, to
telecommunications, to agricultural subsidies, to foreign terrorist organization designations.
Consistent with agency observations, environmental and energy market decisions were most
frequently remanded without vacatur. Telecommunications was the next most common subject
matter in remand without vacatur cases.
Statutory Basis for Review (post-1999 decisions): All forty-one post-1999 remand
without vacatur cases were examined to determine the statutory basis for judicial review. The
purpose of this inquiry was to determine whether the remedy has applicability outside of cases
reviewed under the Administrative Procedure Act’s judicial review provisions at 5 U.S.C. §
706(2). In all eighteen EPA cases judicial review was under the Clean Air Act, 42 U.S.C. §
7607(d). Sixteen cases were subject to review under the Administrative Procedure Act, 5 U.S.C.
§ 706(2). All three post-1999 FERC cases were reviewed under specific statutory provisions in
the Natural Gas Act, 15 U.S.C. § 717r(b), or the Federal Power Act, 16 U.S.C. § 825(b). Two
other cases were reviewed under specific statutory provisions other than the APA, one agency
action was exempt from review under the APA but was reviewed by the court to determine
whether it was in excess of the agency’s statutory authority, and in one other case the statutory
basis for review could not be identified.
These results indicate that any analysis of the legality of the remedy should consider the
statutory basis for review, rather than focus exclusively on the Administrative Procedure Act.
Nonetheless, this analysis is rarely undertaken in judicial opinions, which appear to endorse the

144

Judge Sri Srinivasan ascended to the bench only in September 2013, and no recent cases were identified in which
he employed remand without vacatur.
145
Portland Cement Ass’n v. EPA, 665 F.3d 177 (D.C. Cir. 2011).
146
Over the entire time period, the remedy was about twice as likely to be applied in rulemaking cases (48) than in
adjudication cases (23).

23

remedy as a general equitable exercise of discretionary remedial authority. The case law offers
one notable exception in the D.C. Circuit, discussed in depth below in the EPA case study. 147
Application of Allied-Signal (post-1993 decisions): Allied-Signal was referenced or
discussed in twenty-six of fifty-four decisions employing remand without vacatur and decided
post-Allied-Signal, including four EPA cases. At least one and usually both Allied-Signal factors
were discussed in nearly all cases citing the decision. Allied-Signal was also discussed in
thirteen opinions for the court and one dissenting opinion in cases where remand without vacatur
was considered but not employed. In five cases where remand without vacatur was discussed but
not employed the court did not consider its precedent in Allied-Signal, all of these cases involved
EPA.
Twenty-eight remand without vacatur cases decided post-Allied-Signal did not explicitly
reference or discuss Allied-Signal, including the majority of cases involving EPA and arising
under the Clean Air Act. This should not, however, be taken as a clear lack of consideration of
the two decisional factors articulated in Allied-Signal. While several EPA cases did not discuss
either of the two Allied-Signal factors, these cases were in the minority. 148 The same is true for
non-EPA cases, including six cases reviewed by the court under the Administrative Procedure
Act, 5 U.S.C. § 706(2), and four that were reviewed under specific statutory review provisions.
As with EPA, many (but not all) of these six cases included consideration of one or both of the
Allied-Signal factors. 149
A key point is that those cases that did not expressly analyze the Allied-Signal factors
contained little to no analysis of the decision to employ the remedy. It does not appear that the
court has articulated new factors for consideration in lieu of those identified in Allied-Signal.
Rather, the court occasionally employs the remedy summarily, without meaningful explanation.
This finding is somewhat supportive of earlier similar findings by Kristina Daugirdas, although it
appears that this is not the normal course of action. 150
ABA Factors (post-1999 decisions): The ABA’s Resolution 107B is rarely referenced
by the D.C. Circuit. 151 None of the forty-one post-1999 cases employing remand without
vacatur discussed the ABA’s recommendation. One case in the D.C. Circuit noted the existence
of the ABA recommendation in analyzing, in dicta, whether a lower court had remanded without
vacating an earlier administrative action. 152 Another D.C. Circuit case in which the court

147

See infra notes 199-214 and accompanying text.
Review for consideration of Allied-Signal factors limited to post-1999 cases. E.g., Catawba County v. EPA, 571
F.3d 20 (D.C. Cir. 2009); New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005); Bluewater Network v. EPA, 370 F.3d 1
(D.C. Cir. 2004).
149
Compare AT&T Inc. v. FCC, 452 F.3d 380 (D.C. Cir. 2006) (remand contemplating possibility of reexplanation)
and MCI Telecomm. Corp. v. FCC, 143 F.3d 606 (D.C. Cir. 1998) (vacation would leave payphone service
providers uncompensated, disrupting their business plans) with Air Trans. Ass’n of Can. V. FAA, 276 F.3d 599
(D.C. Cir. 2001) (no discussion of reasons for imposing remedy) and United Distrib. Cos v. FERC, 88 F.3d 1105
(D.C. Cir. 1996) (citation to earlier remand without vacatur decisions without discussion).
150
See generally Daugirdas, supra note 72.
151
A cursory Lexis search indicates that the recommendation has been cited in one or two district courts but not in
the Courts of Appeals.
152
Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 197 (D.C. Cir. 2009).
148

24

declined to employ remand without vacatur cited the ABA’s resolution for its identification of
factors to guide courts considering the remedy. 153
Discussion of special circumstances identified in the ABA Resolution was limited to the
extent that those circumstances overlap with Allied-Signal. The author’s review of the case law
did not identify any cases in which the court specifically discussed preclusion of “fair public
consideration of a central issue in a rulemaking or a fair hearing on the necessary findings” in the
context of determining whether to vacate an agency action. Rather, in a number of cases it was
clear that public consideration or a fair hearing of the agency decision, or an aspect thereof, was
precluded by the way the agency had proceeded. 154
Nor has the D.C. Circuit explicitly adopted a presumption against remand without
vacatur. Nonetheless, the rarity of this remedial technique in the run of cases may indicate that
one exists, if only by default.
Procedural Protections (post-1999 decisions): Imposition of timeframes within
which the agency must respond is the exception rather than the rule. The court is more likely to
compel (or encourage) a timely agency response on remand using general language ordering the
agency to “act expeditiously,” “promptly,” or “without undue delay.” In some cases, the court
expressly declined to impose a timeline on agency action on remand and instead reminded
petitioner’s that the appropriate course of action if the agency did nothing was to petition the
court for a writ of mandamus. 155
D.C. Circuit opinions employing remand without vacatur have rarely stayed the
underlying agency action on remand or extended statutory or administrative compliance
deadlines. In one identified post-1999 case, which involved review under the Clean Air Act, the
court declined to stay EPA’s national emissions standards for hazardous air pollutants
(NESHAP) rule for Portland cement facilities, finding that it was unlikely to change on remand.
However, it did stay enforcement of a portion of the rule that had been inadequately noticed.156
The court found that as a result of comments, the rule could “likely change substantially,” and so
“industry should not have to build expensive new containment structures until the standard is
finally determined.” 157 In another case, also involving EPA and arising under the Clean Air Act,
the Court remanded a rule to EPA for reconsideration of cost effectiveness and continued an
earlier adopted stay 158
Post-remand judicial review (all decisions): Shepardizing all cases in the dataset
indicates that follow-up judicial proceedings are rare; review of post-remand judicial

153

Illinois Pub. Telecomms. Ass’n v. FCC, 123 F.3d 693, 693 (D.C. Cir. 1997).
E.g., Elec. Privacy Info. Ctr. v. Dep’t of Homeland Security, 653 F.3d 1 (D.C. Cir. 2011) (remanding without
vacating DHS action that should have been subject to notice and comment as a rulemaking under the APA, 5 U.S.C.
§ 553, or excepted from notice and comment for “good cause” under 5 U.S.C. 553(b)(3)(B)); Michigan v. EPA, 213
F.3d 663 (D.C. Cir. 2000) (remanding a portion of a rule in which the EPA had significantly altered the definition of
a term two months after the term was issued; expressly vacating application of the rule only as to three states on
unrelated grounds).
155
E.g., North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008).
156
Portland Cement Ass’n v. EPA, 665 F.3d 177, 189 (D.C. Cir. 2011).
157
Id.
158
Arteva Specialities S.A.R.L. v. EPA, 323 F.3d 1088 (D.C. Cir. 2003).
154

25

proceedings revealed relevant subsequent history for only fourteen of seventy-three cases. 159
This methodology has some limitations, however, and may not have identified subsequent
proceedings that were not published 160 or that were filed as separate legal challenges to newly
promulgated agency orders or rules. 161
The few follow-up cases identified were weighted slightly more towards vacatur of the
agency’s subsequent decision, but are likely underrepresentative of subsequent proceedings.
Three cases were identified in which the post-remand agency decision or explanation was
affirmed. 162 Six cases were identified in which the subsequent judicial review led to vacation of
the underlying action. 163
The remedy of a writ of mandamus appears to be extraordinary; only three cases were
identified in which a writ issued to require agencies to take action on an earlier order remanding
without vacating an agency decision. 164 One case was identified denying a mandamus
petition. 165

159

Not all subsequent history was responsive to initial application of the remedy—only those twelve that were are
discussed below.
160
For example, an internet search indicated that several mandamus petitions were filed in response to EPA inaction
after remand in Am. Farm Bureau Fed'n v. EPA, 559 F.3d 512 (D.C. Cir. 2009). E.g., American Farm Bureau Fed’n
v. EPA, No. 06-1410, Petition by American Lung Association et al. for Writ to Enforce the Court’s Mandate (D.C.
Cir. filed Nov. 15, 2011); American Farm Bureau Fed’n v. EPA, No. 06-1410, Petition by State Attorneys General
for Writ to Enforce the Court’s Mandate (D.C. Cir. filed Nov. 15, 2011). These requests were denied given EPA’s
declaration that it would take final action by June 2013. American Farm Bureau Fed’n v. EPA, No. 06-1410, Per
Curiam Order (D.C. Cir. filed Feb. 16, 2012).
161
For example, EME Homer City Generation v. EPA, 696 F.3d 7 (D.C. Cir. 2012), and North Carolina v. EPA,
supra note 4, might logically be viewed as related actions, given that the rule challenged in EME Homer was
promulgated in response to the remand in North Carolina. However because all citing references were checked for
post-1999 cases, a few such subsequent proceedings were identified.
162
TransCanada PipeLines Ltd. v. FERC, 24 F.3d 305 (D.C. Cir. 1994) (orders on remand substantially affirmed at
Southeastern Mich. Gas. Co. v. FERC, 133 F.3d 34 (D.C. Cir. 1998)); City of Brookings Mun. Tel. Co. v. FCC, 822
F.2d 1153 (D.C. Cir. 1987) (not included in Appendix A because of ambiguity regarding vacatur, subsequent FCC
order affirmed in ICORE v. FCC, 985 F.2d 1075 (D.C. Cir. 1993)); Nat'l Coal. Against the Misuse of Pesticides v.
Thomas, 809 F.2d 875 (D.C. Cir. 1987) (EPA response on remand affirmed in Nat'l Coal. Against the Misuse of
Pesticides v. Thomas, 815 F.2d 1579 (D.C. Cir. 1987)).
163
Air Trans. Ass’n of Canada v. FCC, 323 F.3d 1093 (D.C. Cir. 2003) (vacating regulations earlier remanded
without vacatur); Radio-Television News Dirs. Ass'n v. FCC, 229 F.3d 269 (D.C. Cir. 2000) (writ of mandamus
ordering FCC to vacate challenged regulations); Checkosky v. SEC, 139 F.3d 221 (D.C. Cir. 1998) (ordering the
SEC to dismiss challenged enforcement action); Chamber of Commerce v. SEC, 412 F.3d 133 (D.C. Cir. 2005)
remanded and vacated with a stay of the mandate, 443 F.39 890 (D.C. Cir. 2006); Tex Tin Corp. v. EPA, 992 F.2d
353 (D.C. Cir. 1993) (finding EPA explanation issued in response to earlier remand without vacatur to be arbitrary
and capricious); Greyhound Corp v. ICC, 668 F.2d 1354 (D.C. Cir. 1981) (setting aside Interstate Commerce
Commission order issued in response to earlier remand).
164
E.g., In re People’s Mojahedin Org. of Iran, 680 F.3d 832 (D.C. Cir. 2012) (issuing a writ of mandamus ordering
the Secretary to act on a petition for reconsideration within four months, but leaving the underlying agency decision
in place); In re Core Commc’ns, Inc., 531 F.3d 849 (D.C. Cir. 2008) (issuing a writ of mandamus to the FCC to
compel it to take action within four months after six years of inaction in response to remand without vacatur);
Radio-Television News Dirs. Ass'n v. FCC, 229 F.3d 269 (D.C. Cir. 2000) (writ of mandamus issued one year after
remand without vacatur of rules raising constitutional concerns).
165
Supra note 160.

26

RWV IN OTHER CIRCUIT COURTS

The central focus of the author’s inquiry was use of remand without vacatur in the D.C.
Circuit. Nonetheless, the literature and some basic case law research identified at least one
opinion employing the remedy in each of the First, Third, Fifth, Eighth, Ninth, Tenth, and
Federal Circuits. 166 With the caveat that this search was not systematic or comprehensive, only
ten such cases were identified. In these cases, the discussion of whether to employ remand
without vacatur expressly considered precedent on remand without vacatur from the D.C.
Circuit. 167
The Third Circuit recently declined to employ the remedy in Council Tree
Communications v. FCC, finding that it was “inappropriate on the facts of the case.” 168 In its
certiorari petition in Council Tree, Council Tree Communications framed the question presented
to the Supreme Court as one of the legality of remand without vacatur under the Administrative
Procedure Act, 5 U.S.C. § 706(2) and argued that there was a Circuit split regarding the
appropriateness of the remedy. 169 The petitioners in Council Tree identified two cases it argued
supported this finding of a Circuit Split. The bases for this claim are discussed below.
First, the petitioners in Council Tree argued that the Tenth Circuit had rejected remand
without vacatur under the APA. As evidence for this claim, petitioners identified the Tenth
Circuit’s 1999 decision in Forest Guardians v. Babbitt. 170 As the FCC pointed out in its
responsive brief, Forest Guardians arose under 5 U.S.C. § 706(1) rather than § 706(2). 171 This
provision of the Administrative Procedure Act provides that court “shall compel agency action . .
. unreasonably delayed.” 172 This case dealt with a request for injunctive relief from the Secretary
of Interior’s failure to issue a critical habitat designation, a non-discretionary duty under the
Endangered Species Act. The court found that the Department of the Interior had failed to act
and ordered the Secretary to issue a final habitat designation “as soon as possible.” 173 If
anything, the Court’s decision not to impose a specific deadline on the Secretary for responsive
action could be construed as one in which the Secretary’s underlying decision (not to issue a
166

See Qwest Corp. v. FCC, 258 F.3d 1191, 1205, 1207 (2001) (intention to remand without vacating clarified in
subsequent order at Qwest Corp. v. FCC, No. 99-9546, Order of Clarification 4 (10th Cir. filed Aug. 27, 2001));
Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1380-81 (Fed. Cir. 2001); Cent.
Me. Power Co. v. FERC, 252 F.3d 34, 48 (1st Cir. 2001); Cent. & S.W. Servs., Inc. v. EPA, 220 F.3d 683, 692 (5th
Cir. 2000); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995); Chem. Mfrs. Ass’n v. EPA,
870 F.2d 177 (5th Cir. 1989); United States Steel Corp. v. EPA, 649 F.2d 572 (8th Cir. 1981); W. Oil and Gas Ass’n
v. EPA, 633 F.2d 803, 813 (9th Cir. 1980); Sharon Steel Corp. v. EPA, 597 F.2d 377 (3d Cir. 1979).
167
E.g., Cent. Me. Power Co. v. FERC, 252 F.3d 34, 48 (1st Cir. 2001) (citing Allied-Signal, supra note 39, review
under the Federal Power Act); Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 260 F.3d 1365,
1380-81 (Fed. Cir. 2001) (citing Allied-Signal, supra note 39, and Checkosky, supra note 49); Cent. & S.W. Servs.,
Inc. v. EPA, 220 F.3d 683, 692 (5th Cir. 2000) (citing Allied-Signal); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d
1392, 1405 (9th Cir. 1995) (citing D.C. Circuit’s precedent in Fertilizer Inst. v. EPA, 935 F.2d 1303, 1312 (D.C. Cir.
1991)); United States Steel Corp. v. EPA, 649 F.2d 572 (8th Cir. 1981) (citing several early D.C. Circuit opinions);
W. Oil and Gas Ass’n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980) (citing several early D.C. Circuit opinions).
168
619 F.3d 235 (3d Cir. 2010), cert. denied, 131 U.S. 1784 (2011).
169
Brief for Petitioner at 15-23, Council Tree Commc’ns, Inc. v. FCC, 619 F.3d 235 (3d Cir. 2010).
170
Id. (citing Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1999)).
171
Brief for the Federal Respondents at 15-23, Council Tree Commc’ns, Inc. v. FCC, 619 F.3d 235 (3d Cir. 2010).
172
5 U.S.C. § 706(1).
173
Forest Guardians v. Babbitt, 174 F.3d at 1193.

27

designation) effectively remained in place on remand. 174 The Tenth Circuit vacated only the
lower court’s issuance of a stay order. 175 More recently, the Tenth Circuit responded favorably
to a request by the FCC that it clarify an opinion to make clear that it had remanded without
vacating the agency’s underlying decision. 176
Next, petitioners argued that the Federal Circuit shared the views on the remedy
attributed to the Tenth Circuit. For this argument, petitioners relied on the Court of Appeals for
the Federal Circuit’s decision in PGBA, LLC v. United States. 177 Petitioners argued that the
Federal Circuit in this case did not dispute the plaintiff’s claims that the Administrative
Procedure Act, 5 U.S.C. § 706(2), required the court to set aside arbitrary or capricious
actions. 178 The Federal Circuit holding in PGBA, LLC was that the Administrative Procedure
Act’s allegedly applicable remedial provisions in § 706(2) did not displace those of the statute
that was the basis for review, the Administrative Dispute Resolution Act of 1996, which provides
that “the courts may award any relief the court considers proper.” 179 The Federal Circuit found
that remand without vacatur was a proper remedy under this statutory provision, and remanded
without vacating the challenged agency action. 180 (The court did not address the plaintiffs’ APA
claim.) Notably, the Federal Circuit has employed remand without vacatur in at least one
challenge to agency action under 5 U.S.C. § 706(2). 181 Thus, the claim of a Circuit split on the
question of legality of the remedy appears, based on a limited review, to be unfounded.
No Court of Appeals cases were identified employing remand without vacatur in the
Second, Fourth, Sixth, Seventh, or Eleventh Circuits. The Seventh Circuit has at least once
declined to employ remand without vacatur, but did so without dispute from the parties regarding
its authority to employ the remedy and because it did not believe the agency would act
expeditiously on remand given prior delays. 182 Without further research, little can be inferred
from this silence except that it supports the conclusion that the remedy is unusual.

C.

CASE LAW CONCLUSIONS

Despite the early debate over the legality of remand without vacatur under the APA in
Checkosky, no panel (majority) opinion issued by the D.C. Circuit since 2000 has held the
remedy invalid under the APA or any other statutory scheme. Rather, the remedy has continued
to be employed, albeit sparingly, in diverse substantive contexts and debate has continued in
174

Id.
Id.
176
See Motion of FCC for Clarification, or Alternatively, for Stay of Mandate at 4-5, Qwest Corp. v. FCC, No. 999546 (10th Cir. filed Aug. 21, 2001); Order of Clarification at 4, Qwest Corp. v. FCC, No. 99-9546 (10th Cir. filed
Aug. 27, 2001) (clarifying remand without vacatur in Qwest Corp. v. FCC, 258 F.3d 1191 (10th Cir. 2001)).
177
Brief for Petitioner at 20-21, Council Tree Commc’ns, Inc. v. FCC, 619 F.3d 235 (3d Cir. 2010) (citing PGBA,
LLC v. United States, 389 F. 3d 1219 (Fed. Cir. 2004)).
178
Id. at 21.
179
28 U.S.C. § 1491(b)(2).
180
PGBA, LLC v. United States, 389 F. 3d at 1225-1228.
181
Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1380 (Fed. Cir. 2001)
(pertaining to review under APA, and quoting Allied-Signal as stating “an inadequately supported rule. . . need not
necessarily be vacated”).
182
Schurz Communications v. FCC, 982 F.2d 1043 (7th Cir. 1992).
175

28

separate opinions. As a general matter, the D.C. Circuit has retained the formula set forth in
Allied-Signal to guide its consideration of whether to employ the remedy. Occasionally, and
seemingly more frequently in cases involving the EPA, the court will issue a decision that
remands a challenged administrative action back to the agency without vacatur but does not state
the basis for its decision.
Early academic concerns that remand without vacatur would become the default remedy
in review of agency action have not been borne out. Case law in the D.C. Circuit suggests that
the remedy is generally used only a few times a year, most frequently in cases involving
challenges to actions by EPA and reviewed under the Clean Air Act, 42 U.S.C. § 7607(d).
Perhaps because the remedy is used so rarely, the A.B.A.’s recommendations in Resolution 107B
appears to have had limited practical effect (or more generously, perhaps the remedy is used
rarely because the ABA has expressed reservations about employing it).
For example, the D.C. Circuit has occasionally used the remedy where opportunity for
public comment on some or all of the agency decision was not available, a special situation in
which the ABA Administrative Law Section’s Report advised against remand without vacatur. It
also appears that the court has not made much use of the procedural protections the A.B.A.
advised courts to consider. The D.C. Circuit rarely stays the underlying agency action on
remand. This makes sense given application of the Allied-Signal factors. Where the rule is
unlikely to change a stay is unlikely to be needed. Where the risks of disruption are serious a
stay would not prevent disruption either. Courts also appear to be reluctant to require agencies to
act within a particular timeframe, and have instead pointed to the availability of mandamus relief
if agency action is not forthcoming. Recently, however, Judge Griffith has expressed his
reservations regarding the advisability of open-ended remands without vacatur. Rarely, the
courts have issued a writ of mandamus to compel the agency to act on an earlier remand.
In deciding whether to employ the remedy, the D.C. Circuit has rarely considered the
underlying statutory provision providing for judicial review (and relief). The only identified
opinion questioning the legality of the remedy under the Clean Air Act’s statutory review
provision was withdrawn after reconsideration. 183 The court has subsequently employed the
remedy in reviewing cases under the Clean Air Act and other statutory review provisions,
apparently as a general exercise of its equitable remedial discretionary authority. Ten years ago,
the Federal Circuit did consider the legality of the remedy under the Administrative Dispute
Resolution Act of 1996, 28 U.S.C. § 1491(b) (2), and held that it was permissible in this statutory
context. 184 The Federal Circuit has also employed the remedy in a case arising under the
Administrative Procedure Act. The Federal, First, Third, Fifth, Eighth, Ninth, and Tenth Circuit
Courts of Appeals have infrequently employed the remedy in cases reviewed under the APA or
environmental statutes.

183
184

Checkosky, supra note 49 (examining the remedy under the APA); see infra notes 194-214 at accompanying text.
PGBA, supra note 177.

29

III.

CASE STUDIES: EPA, FERC, AND THE FCC

Having generally examined application of the remedy of remand without vacatur, the
report next offers case studies exploring use of the remedy with three agencies: EPA, FCC, and
FERC. These agencies were chosen because the remedy appears to have been used more often
in their cases than those involving other agencies, at least five times each. The purpose of this
inquiry was twofold: first, to determine why the remedy is used more frequently with these
agencies; second, to understand the agency’s perspectives on and responses to the remedy.
In order to better understand the agency’s perspective on remand without vacatur each
agency was sent a questionnaire tailored to their agency. A generic version of this questionnaire,
containing questions asked of each of the agencies, is included as Appendix B. The author met
with attorneys for the FCC and FERC to discuss their responses to these questions. These
discussions were informal in nature, and any summary thereof should not be taken as
establishing a formal position for the agency.

A.

THE ENVIRONMENTAL PROTECTION AGENCY (EPA)

As noted previously, EPA has, in recent years, been a party to significantly more
litigation employing (or discussing) remand without vacatur as compared with other federal
agencies.185 For example, analysis of the studied D.C. Circuit dataset reveals that this circuit has
employed remand without vacatur in eighteen EPA cases since 1999. All eighteen of these cases
involved challenges to EPA regulations promulgated under a variety of air pollution control
programs and subject to review under the Clean Air Act, 42 U.S.C. § 7607(d).186 The remedy is
also discussed in cases declining to employ the remedy. In these types of cases too, EPA is
involved more than other agencies and the Clean Air Act predominates the statutory bases for
review.
IS THE CLEAN AIR ACT SPECIAL?

It is striking that every observed example of remand without vacatur involving EPA in
the D.C. Circuit after 1999 arose under the Clean Air Act. This may point to limitations in the
methodology.187 On the other hand, it may be that the Clean Air Act is special, even relative to

185

See Appendix A.
In one of these cases, the court ordered remand without vacatur by way of an unpublished, per curiam decision in
response to a motion for voluntary remand filed by EPA. See Sierra Club v. EPA, No. 03-1205, 2010 U.S. App.
LEXIS 12020 (June 10, 2010) (granting EPA's partially unopposed motion for voluntary remand without vacatur,
EPA’s Partially Unopposed Motion for Voluntary Remand Without Vacatur, No. 03-1205 (D.C. Cir. filed Feb. 19,
2010)).
187
It is possible that remand without vacatur has been employed in D.C. Circuit cases arising under other
environmental or public health statues but that the research methodology did not identify them because they did not
cite circuit precedent in deciding whether to employ the remedy. A number of Clean Air Act cases were identified
that contained little to no explanation of the decision to employ the remedy and that did not reference Allied-Signal
or Checkosky—these cases were identified because they referenced earlier Clean Air Act decisions that had
employed the remedy and did discuss Allied-Signal or other case in the initial dataset.
186

30

other statutes that protect environmental or public health. Several factors may help to explain the
unique prevalence of the remedy in cases involving the control of air pollution.
First, legal challenges to EPA regulatory actions under the Clean Air Act comprise the
most common type of environmental litigation heard in federal courts. According to a recent
GAO study of about 2,500 environmental cases brought against EPA from fiscal years 1995
through 2010, Clean Air Act litigation is more than twice as common (at 59%) as compared to
the second most frequent type of litigation arising under the Clean Water Act (20%).188 Given
that Clean Air Act litigation represents the bulk of the agency’s environmental litigation since
the mid-1990s, it stands to reason that remand without vacatur would also be more prevalent in
these cases over this time period.
Second, the Clean Air Act’s judicial review provisions tend to make the D.C. Circuit the
most common forum for challenges to EPA action arising under this statute. Judicial review
under 42 U.S.C. § 7607(d) must be brought in the U.S. Circuit Courts of Appeals and the law
contains special provision for challenges to rules of nationwide applicability to be brought in the
D.C. Circuit exclusively.189 It may be that challenges to EPA rules promulgated under other
statutes are brought in district courts or other Courts of Appeals.190
Further, EPA has a long history with the remedy in Clean Air Act litigation. Several of
the early cases employing the remedy arose as the newly formed agency worked to implement
major amendments to the law. More recently, the D.C. Circuit has used remand without vacatur
in a number of decisions involving litigation over the agency’s revisions to the Act’s
fundamental regulatory standards (NAAQS) or pollutant trading programs, which form the basis
for implementing programs and regulations (e.g., standards for new source review or prevention
of significant deterioration in air quality). In deciding not to vacate EPA clean air rules, the
court has continued to consider whether vacation would adequately protect public health while
the agency worked to revise rules on remand. Of course, not all cases explicitly discuss this
rationale—indeed, several do not discuss the remedial choice at all—and other cases examine
more specific regulatory issues. Nonetheless, because all Clean Air Act regulatory programs
work in some fashion toward the common goal of improving air quality, it stands to reason that
public health considerations play a significant role in the remedial calculus regardless of whether
or not they are expressly discussed by the reviewing court.
In a similar vein, environmental or state petitioners have asked the court to employ the
remedy in their briefs when they are challenging a rule on the grounds that it is not sufficiently
stringent. The remedy can operate to the benefit of varied interest groups. On at least one
occasion, remand without vacatur was requested by industry petitioners seeking to retain
permitting exemptions for de minimis sources contained in the challenged regulations. 191 In

188

U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-11-650, ENVIRONMENTAL LITIGATION: CASES AGAINST EPA AND
ASSOCIATED COSTS OVER TIME 15-16 (2011).
189
42 U.S.C. § 7607(b).
190
E.g., 15 U.S.C. § 2618(a)(1) (Toxic Substances Control Act challenges to regulations in District Court); 33
U.S.C. § 1369(b)(1) (direct challenge to some Clean Water Act rules in Courts of Appeals, not limited to D.C.
Circuit). But see 42 U.S.C. § 6976 (review of Resource Conservation Recovery Act regulations in D.C. Circuit).
191
Brief of Intervenor-Respondent Utility Air Regulatory Group, Sierra Club v. EPA at 9, 14-19, No. 10-1413 (D.C.
Cir. filed Apr. 27, 2012) (requesting affirmance, or at least non-vacatur).

31

recent years, environmental petitioners, state petitioners, intervenors, and EPA itself have all
asked that the D.C. Circuit remand agency regulations without vacatur. 192
Lastly, and perhaps more speculatively, it may be that the remedy is simply more familiar
in the context of Clean Air Act litigation—where several environmental groups, state Attorney
General offices, and industry challengers have been involved in similar cases for many years. In
a number of cases, the D.C. Circuit employed the remedy in a cursory fashion, without real
discussion of the underlying equitable considerations or the Allied-Signal factors. 193 This may
signal that the court does not view the remedy as particularly controversial in Clean Air Act
cases, and that repeat players in Clean Air Act litigation have accepted it.
One final possible answer is that the plain language of the Clean Air Act’s statutory
review provision makes remand without vacatur more likely in this context. The D.C. Circuit’s
initial (but subsequently withdrawn) opinion in Honeywell International v. EPA presents a
challenge to this theory. 194 Judge Sentelle’s opinion for the court in that case directly challenged
the legality of the remedy under the Act. However, as discussed below, the opinion was
reconsidered, and courts have continued to employ the remedy in Clean Air Act cases.
HONEYWELL: INTERPRETING THE CLEAN AIR ACT

In 2004, a D.C. Circuit panel (which consisted of Judges Sentelle, Randolph, and Rogers)
issued a per curiam decision upholding Petitioner Honeywell International’s challenge to EPA’s
final rules designating acceptable substitutes for ozone-depleting substances. 195 Had it not been
withdrawn, the court’s opinion in this case could have ended application of the remedy under the
Clean Air Act in the D.C. Circuit.
Under the relevant provision of the Clean Air Act, EPA was forbidden from accepting
substitutes for ozone-depleting substances with potential harms to human health or the
environment when other, less harmful substitutes were currently or potentially available. 196
Honeywell challenged EPA’s approval of two substitutes for new uses (which allowed new
entrants into the market in which Honeywell competed) by arguing that EPA impermissibly
considered economic factors in the approval process. The Honeywell court agreed, finding
unanimously that EPA’s consideration of economic costs exceeded its authority under the Clean
Air Act, and vacated EPA’s rule. The panel, however, split on the appropriate remedy.
Judge Sentelle, writing for the panel majority (along with Judge Randolph) found that the
Clean Air Act did not authorize the remedy of remand without vacatur. Judge Sentelle stated:
“We read the judicial review provisions of the [Clean Air Act] to authorize us only to vacate,
192

E.g., Sierra Club v. EPA, No. 03-1205 2010 U.S. App. LEXIS 12020 (unpublished) (June 10, 2010) (granting
EPA's partially unopposed motion for voluntary remand without vacatur); New York v. EPA, No. 06-1148 with 061149, 2009 U.S. App. LEXIS 20050 (unpublished) (Sept. 4, 2009) (voluntary remand without vacatur motion by
EPA unopposed); Nat'l Lime Ass'n v. EPA, 233 F.3d 625 (D.C. Cir. 2000) (Sierra Club requested, EPA requested in
part, petitioner opposed).
193
E.g., Catawba County v. EPA, 571 F.3d 20 (D.C. Cir. 2009); New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005);
Bluewater Network v. EPA, 370 F.3d 1 (D.C. Cir. 2004).
194
374 F.3d 1363 (D.C. Cir. 2004).
195
Id.
196
42 U.S.C. § 7671q.

32

rather than remand, for the sort of challenge at issue here.” 197 He also noted that the judicial
review provisions of the Clean Air Act, rather than those of the Administrative Procedure Act,
governed review. The Clean Air Act’s review provision provides:
In the case of review of any action of the Administrator to which this subsection applies,
the court may reverse any such action found to be—
(A)
(B)
(C)
(D)

arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
contrary to constitutional right, power, privilege, or immunity;
in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right; or
without observance of procedure required by law, if
(i) such failure to observe such procedure is arbitrary or capricious,
(ii) the requirement of paragraph (7)(B) has been met, and
(iii) the condition of the last sentence of paragraph (8) is met. 198

Judge Sentelle examined dictionary definitions of the term “reverse” and concluded that the
court’s authority under the Act was limited to vacating EPA’s actions when it found a violation
of the standard of review. 199 He distinguished its earlier precedent authorizing remand without
vacatur in the context of the Clean Air Act by its failure to explicitly consider the remedy of
remand without vacatur under the text of the statutory review provision, and determined that this
precedent was not binding on the court. 200
Judge Randolph, while joining this majority opinion, wrote a separate concurrence
(which Judge Sentelle also joined) to express his view that vacating unlawful agency action was
always preferable to remanding without vacatur. 201 He argued that vacatur preserves the
adversary process, requiring parties on both sides to brief the appropriateness of a stay of the
mandate if this relief is requested by the agency or intervenors in the case. 202 This process, he
wrote, allows “the court to act with its eyes open,” gives the agency the proper incentive to
respond in a timely fashion, and allows the court to consider long-standing precedent in
determining whether to issue a stay. 203 He criticized the court’s practice of employing the
remedy in a cursory fashion, without explanation.
Judge Randolph’s concurrence also noted his preference for the multiple factors
articulated in Virginia Petroleum Jobbers v. FPC and its progeny—rather than the two factors
set forth in Allied-Signal—for determining the availability of a stay or an injunction pending
appeal. These factors, as set forth in his concurring opinion, “include the likelihood that the
agency's position will prevail on remand; the likelihood that there will be irreparable harm
without the stay; the prospect that others will be harmed if the court grants the stay; and the

197

Honeywell, supra note 194 at 1373 (Sentelle, J., for the court).
42 U.S.C. § 7607(d)(9)
199
Honeywell, supra note 194 at 1373-74.
200
Id. at 1374.
201
Id. (Randolph, J., concurring).
202
Id. at 1375.
203
Id.
198

33

public interest in granting the stay.” 204 His concurring opinion did not, however, substantively
analyze the difference between these two standards.
Judge Rogers, on the other hand, dissented from the Honeywell panel majority’s remedial
holding. She opined that remand without vacatur was the appropriate remedy under the court’s
long-standing precedent, including Allied-Signal. Judge Rogers also concluded that remand
without vacatur was proper under the circumstances of the case because, in her view, EPA might
be able to support its decision on remand and the consequences of vacatur could be disruptive. 205
EPA subsequently moved for panel rehearing or rehearing en banc of the panel majority’s
ruling in Honeywell with respect to the legality of remand without vacatur under the Clean Air
Act. 206 The agency made three principle claims in support of reconsideration: (1) the panel
majority’s reading of the Clean Air Act’s judicial review provision as foreclosing remand
without vacatur conflicted with decades of D.C. Circuit precedent; (2) such a reading would also
undermine the purposes of the Clean Air Act; and (3) federal courts have inherent authority to
fashion appropriate equitable remedies. 207 EPA argued that use of the term “reverse” in Clean
Air Act’s judicial review provision no more required the court to vacate agency action than the
Administrative Procedure Act’s command that reviewing courts must “set aside” impermissible
or unlawful agency action, and cited to substantial circuit court precedent authorizing remand
without vacatur under the APA. 208 The agency reasoned that this precedent demonstrated that
there was no “clear statement” from Congress displacing equitable remedial authority under the
APA or the Clean Air Act. 209
In 2005, the Honeywell panel granted in part and denied in part EPA’s request for
rehearing. 210 The per curiam grant of reconsideration found it “unnecessary to decide” whether
the Clean Air Act’s judicial review provision required vacation and held that vacation was still
the appropriate remedy for the reasons set forth in Judge Randolph’s opinion. 211 Judge Rogers
wrote separately to support withdrawal of the court’s holding on the legality of the remedy under
the Clean Air Act but to dissent from the decision to vacate the rule. 212
EPA again petitioned for rehearing en banc, this time asking the court to reconsider
Judge Randolph’s statement that vacatur “should always be the preferred course.” 213 The D.C.
Circuit denied this request in a summary per curiam order, without an opinion, issued after a vote

204

Id. (citing Virginia Petroleum Jobbers v. FPC, 259 F.2d 921 (D.C. Cir. 1958) and its progeny).
Id. at 1379-80 (Rogers, J., concurring in part and dissenting in part).
206
See Motion of Environmental Protection Agency for Panel Rehearing or Rehearing En Banc, Honeywell Int’l Inc.
v. EPA, No. 02-1294 (D.C. Cir. filed Oct. 7, 2004).
207
It is surprising that this analysis did not consider the full operative sentence, which says that courts “may reverse
any. . . action” violating the standard of review, and arguably needs not be read as requiring reversal. 42 U.S.C. §
7607(d)(9).
208
Motion for Rehearing, supra note 206 at 8-9.
209
Id. at 10-12 (citing United States v. Oakland Cannabis Buyer’s Coop., 532 U.S. 483, 496 (2001) for the
proposition that courts “have discretion unless a statute clearly provides otherwise”).
210
Honeywell Int’l Inc. v. EPA, 393 F.3d 1315 (D.C. Cir. 2005).
211
Id. at 1316.
212
Id. (Rogers, J., concurring in part and dissenting in part).
213
374 F.3d 1363, 1375 (D.C. Cir. 2004) (Randolph, J., concurring).
205

34

on the petition. 214 It does not appear, however, that the D.C. Circuit has adopted Judge
Randolph’s views on the remedy in practice. The D.C. Circuit has subsequently employed the
remedy in a number of cases involving the EPA. 215
A CHANGING CLIMATE: REVISITING THE CLEAN AIR ACT

Although the legality of remand without vacatur under the Clean Air Act no longer
appears to be in question, a legislative endorsement of the remedy was quietly passed by the
House of Representatives in a 2009 bill that would have updated the Clean Air Act to create a
cap-and-trade program for greenhouse gases had it not been rejected by the Senate. 216
In 2007, the U.S. Supreme Court found that carbon dioxide and other greenhouse gases
fit within the Clean Air Act’s definition of an air pollutant. 217 Since that time, EPA has made the
endangerment finding required for regulation of these greenhouse gas emissions under the Clean
Air Act. 218 One difficulty the agency has faced is the rigid statutory language establishing
regulatory thresholds for emissions, which could be construed to require regulation of a
significant number of new entities. 219 With the support of President Obama, Congress has
recently considered legislation that would revamp the Clean Air Act to establish a cap-and-trade
program for greenhouse gas pollution.
The American Clean Energy and Security Act of 2009, which would have created a
climate trading program, was adopted by the U.S. House of Representatives in June 2009.220
The bill contained a provision that would have amended the judicial review provision of the
Clean Air Act, 42 U.S.C. § 7607(d), to add a new clause expressly permitting remand without
vacatur “if vacatur would impair or delay protection of the environment or public health or
otherwise undermine the timely achievement of the purposes of this Act.” 221 A second clause
would have required the Administrator to respond to the remand within one year. 222 The new
provisions were not limited in application to judicial review of regulations governing greenhouse
gas pollution but rather would have expressly sanctioned remand without vacatur in any review
under 42 U.S.C. § 7607(d), where the appropriate conditions were met.
Both the proposal to expressly authorize remand without vacatur of agency decisions and
the proposal to require the agency to respond within one year were contained in the bill as
214

Honeywell Int’l, Inc. v. EPA, 02-1294, 2005 U.S. App. LEXIS 6550 (D.C. Cir. Apr. 15, 2005) (per curiam).
Judge Henderson did not participate in the decision and Judge Rogers and Tatel would have granted the petition. Id.
215
E.g., National Ass’n of Clean Water Agencies v. EPA, No. 11-1131 (D.C. Cir. Aug. 20, 2013) (opinion by Judge
Sentelle); Mississippi v. EPA, No 08-1200, 2013 U.S. App. LEXIS 14885 (D.C. Cir. July 23, 2013); Portland
Cement Ass’n v. EPA, 665 F.3d 177 (D.C. Cir. 2011); Am. Farm Bureau Fed’n v. EPA, 559 F.3d 512 (D.C. Cir.
2009).
216
H.R. 2454, 111th Cong. (as passed by the House June 7, 2009).
217
Massachusetts v. EPA, 549 U.S. 497 (2007).
218
Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air
Act, 74 Fed. Reg. 66496 (Dec. 15, 2009).
219
See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule: Final Rule, 75 Fed. Reg.
31514 (June 3, 2010); EPA, Office of Air Quality Planning and Standards, Operating Permits Burden Reductions
(Apr. 13, 2010), available at http://www.epa.gov/nsr/documents/20100413piecharts.pdf (last accessed Sept. 10,
2013).
220
H.R. 2454, supra note 216.
221
Id. at § 336(a)
222
Id.

35

introduced in the House of Representatives. 223 H.R. 2454 was nearly 1,500 pages in length and
received considerable attention and debate on the floor of the House and in committee hearings.
However, review of the legislative history indicates that there was no substantive discussion of
this provision or why it was included in the proposal. One possible explanation for the
provisions is that Congress or EPA anticipated substantial litigation over regulation of
greenhouse gas emissions and sought to ensure that the cap-and-trade program would move
forward in spite of successful legal challenges that would require legal alterations to the new
regulatory regime.
On a related note, and as a concluding aside, Congress has generally has paid very little
attention to the remedy or its use by the courts, except one identified authorization of the remedy
in particular statutory review contexts. 224 The only notable discourse on the remedy identified in
a review of the Congressional Record was in a resolution by Senator Rand Paul disapproving of
regulations implementing EPA’s Clean Air Interstate Rule after it had been remanded without
vacatur. 225 This resolution (which was not enacted) noted the judicial remand without vacatur,
but did not comment directly on the appropriateness of the remedy. 226

B.

THE FEDERAL COMMUNICATIONS COMMISSION (FCC)

The D.C. Circuit has employed the remedy of remand without vacatur seven times in
cases involving the FCC since 1998. 227 Occasionally, the D.C. Circuit has remanded FCC
decisions without specifying whether they were also vacated. 228 The D.C. Circuit has also
expressly declined to employ the remedy in at least one case involving the agency, where the
challenged agency action failed to adequately account for competition in accordance with the
court’s precedent in separate litigation on predecessor rules. 229 Review of the case law and
informal discussions with agency attorneys did not reveal any particular pattern in the case law
subject matter or factual context that might drive judicial application of the remedy in FCC
cases. Rather, the cases in which the remedy was used appear to center around a judicial desire
to give the agency an opportunity to articulate reasoning for the decisions that were challenged.
223

H.R. 2454, 111th Cong. (as introduced in the House May 15, 2009).
E.g., 5 U.S.C. § 611(a)(4) (Under the Regulatory Flexibility Act where corrective action is required the court is to
remand the rule to the agency but may permit continued enforcement where it “is in the public interest”).
225
157 Cong. Rec. 172, p. S7326 (Nov. 10, 2011) (statement of Sen. Rand Paul in support of Disapproving a Rule
Submitted By the Environmental Protection Agency Relating To the Mitigation by States of Cross-Border Air
Pollution under the Clean Air Act).
226
Id.
227
Review in each of these cases was under the Administrative Procedure Act, 5 U.S.C. § 706(2). ATT Inc. v. FCC,
452 F.3d 830 (D.C. Cir. 2006); Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1048 (D.C. Cir. 2002); Sinclair
Broad Group, Inc. v. FCC, 284 F.3d 148 (D.C. Cir. 2002); WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002);
Sprint Commc’ns Co., L.P. v. FCC, 274 F.3d 549 (D.C. Cir. 2001); Radio-Television News Dirs. Ass'n v. FCC, 184
F.3d 872 (D.C. Cir. 1999); MCI Telecomm. Corp. v. FCC, 143 F.3d 606 (D.C. Cir. 1998); see also 47 U.S.C. §
402(g) (“The court shall hear and determine the appeal upon the record before it in the manner prescribed by section
706 of title 5.”).
228
E.g., Am. Radio League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir. 2008) (remanding without specifically setting
aside or vacating agency action); Starpower Commc’ns, LLC v. FCC, 334 F.3d 1150 (D.C. Cir. 2003) (same).
229
Comcast Corp. v. FCC, 579 F.3d 1 (D.C. Cir. 2009) (citing FCC’s failure to follow earlier precedent in Time
Warner Entertainment Co., LP v. FCC, 240 F.3d 1126 (D.C. Cir. 2001)).
224

36

Remand without vacatur cases involving the Commission only occasionally turn on the potential
disruptiveness vacation could bring.
Arguably, the most significant remand without vacatur case involving the FCC was in the
Third Circuit, in Council Tree Communications v. FCC, and in which the court declined to
employ the remedy. 230 This case is discussed in further detail below; it is notable because it
required the FCC to affirmatively defend the legality of the remedy under the Administrative
Procedure Act in response to a petition for certiorari. The FCC has a strong institutional interest
in defending the remedy, which has been applied in agency cases involving either of the two
Allied-Signal factors, and which it occasionally asks courts to employ in the event of a finding of
agency error. 231 The agency supports judicial application of both factors set forth in AlliedSignal for determinations of whether to remand without vacatur. 232
Of the studied D.C. Circuit cases employing the remedy and in which the FCC was a
party, only one focused on the potential disruption that would result from vacation of the
agency’s action. In MCI Telecommunications Corp. v. FCC, the court remanded without
vacating an FCC order setting compensation rates for payphone service providers for calls made
on their payphones. 233 The court found the Commission’s explanation of the rate it had chosen
“plainly inadequate” but chose to remand without vacating the order because vacation would
have left the service providers “all but uncompensated” and thus would “disrupt the business
plans they have made on the basis of their expected compensation.” 234
In practice, the remedy has been used most often in FCC cases when there is a possibility
that it will be able to rehabilitate its decision on remand. One opinion frankly acknowledged
that, as applied to the facts in that case, the disruption factor of the Allied-Signal considerations
was “only barely relevant,” and called the potential disruptive consequences of vacation “not
great.” 235 It appears that the threshold for a finding of potential rehabilitation may also be low in
some cases involving the FCC. The D.C. Circuit’s various articulations of the probability have
ranged from “cannot say with confidence that the [agency action] is likely irredeemable” 236 to

230

619 F.3d 235 (3d Cir. 2010), cert. denied, 131 U.S. 1784 (2011).
Brief for Respondents at 28-29, Council Tree Commc’ns, Inc. v. FCC, No. 07-1454 (D.C. Cir. filed Feb. 17,
2009) (case dismissed for lack of jurisdiction); Motion of Federal Communications Commission for Clarification, or
Alternatively for Stay of Mandate at 4-5, Qwest Corp. v. FCC, No. 99-9549 (10th Cir. filed, Aug. 21, 2001)
(clarification that court had remanded without vacatur); Supplemental Brief of Federal Communications
Commission at 2, 8-9, Schurz Communications, Inc. v. FCC, No. 91-2350 (7th Cir. filed Nov. 20, 1992) (request
denied after discussion of prior agency delay).
232
Brief for Respondents, supra note 231 at 28-30, Council Tree Commc’ns, Inc. v. FCC, No. 07-1454 (D.C. Cir.
filed Feb. 17, 2009) (asking court to apply Allied-Signal factors and remand without vacatur in the event it finds
agency error); Brief for Respondents at 51-52 Council Tree Commc’ns, Inc. v. FCC, No. 06-2943 (3rd Cir. filed
Oct. 13, 2006) (same).
233
143 F.3d 606 (D.C. Cir. 1998).
234
Id. at 609.
235
Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1049 (D.C. Cir. 2002).
236
AT&T Inc. v. FCC, 452 F.3d 830 (D.C. Cir. 2006) (citing Fox Television Stations, Inc. v. FCC, supra note 235 at
1048 (D.C. Cir. 2002)). Notably, Judge Randolph concurred in this opinion but wrote separately to indicate that he
did so only because he found no practical difference between remanding on the one hand, and vacating and
remanding on the other. Id. at 839 (Randolph, J., concurring).
231

37

“conceivably may determine” 237 to the more concrete finding of a “nontrivial likelihood” of
potential rehabilitation. 238
In two cases involving remand without vacatur, the Court focused on the need for the
agency to determine whether to vacate its own rules, in accordance with regulatory review
required by Section 202(h) of the 1996 Telecommunications Act. This law required the FCC to
undertake a retrospective review of its ownership regulations every four years, and to rescind
regulations that are not in the public interest. 239 Both of the following cases involved challenges
to the FCC’s decision not to rescind national television and ownership rules and local broadcast
rules. In each, the court held that the agency had not shown that the retained rules were
“necessary in the public interest” but remanded rather than vacated the regulations in order to
give the agency the option to make this showing. 240
In Fox Television Stations, Inc. v. FCC, the court heard a challenge to two FCC rules,
acknowledged its authority to order the FCC to vacate rules to redress violations of Section
202(h), and did vacate the cable/broadcast cross-ownership rule. 241 However, it remanded
without vacatur the national television station ownership rule to the FCC after consideration of
the Allied-Signal factors and concluding that it could not “say with confidence that the Rule is
likely irredeemable . . . .” 242 The court’s subsequent decision in Sinclair Broad Group, Inc. v.
FCC issued despite a dissent from Judge Sentelle, in which he argued that vacatur was required
in light of the presumption imposed by Congress upon the agency by Section 202(h) “in favor of
repealing or modifying the ownership rules” and given the agency’s failure to affirmatively
justify its rules. 243
On at least two occasions the D.C. Circuit has, after remands without vacatur, vacated the
FCC’s underlying decision through a writ of mandamus issued in response to the agency’s
failure to respond in a timely fashion to the court’s remand without vacatur. This frequency is
notable given that only seven cases were identified remanding without vacating agency
decisions, and given the extraordinary nature of the mandamus remedy. Radio-Television News
Directors Association v. FCC involved a challenge to long-standing broadcast rules that required
broadcasters to provide opportunities for response to personal attacks or political opinions.244
The court found there was a possibility that the agency “may uphold” the rules on remand, and
ordered the agency to act expeditiously. 245 When it did not, which may have been because the
Commission was divided on the appropriate course of action, the court vacated the rules. 246
Remarkably, only one year passed between the initial decision and the issuance of a writ of
237

Sinclair Broad Group, Inc. v. FCC, 284 F.3d 148, 162 (D.C. Cir. 2002)
WorldCom, Inc., 288 F.3d 429, 434 (D.C. Cir. 2002).
239
Telecommunications Act of 1996, Pub. L. No. 104-104, § 202(h), 110 Stat. 56, 111-12 (1996); Consolidated
Appropriations Act, 2004, Pub. L. No. 108-199, § 629, 118 Stat. 3, 99-100 (2004) (amending Sections 202(c) and
202(h) of the 1996 Act).
240
Sinclair , supra note 237 at 165 (D.C. Cir. 2002); Fox Television Stations, Inc. v. FCC, supra note 235 at 1048.
241
Fox Television Stations, supra note 235 at 1033.
242
Id. at 1048-49.
243
Sinclair, supra note 237 at 171 (Sentelle, J., dissenting).
244
Radio-Television News Dirs. Ass'n v. FCC, 184 F.3d 872 (D.C. Cir. 1999), writ of mandamus subsequently
issued in Radio-Television News Dirs. Ass'n v. FCC, 229 F.3d 269 (D.C. Cir. 2000).
245
Id. at 888.
246
Id. at 878 (noting deadlock); Radio-Television News Dirs. Ass'n v. FCC, 229 F.3d 269 (D.C. Cir. 2000).
238

38

mandamus vacating the agency rules. 247 Two factors likely contributed to the short-time frame.
First, there was a long history of agency inaction on the request to repeal the rules. 248 Second,
the D.C. Circuit found that the rules chilled free speech and burdened First Amendment rights.
In the D.C. Circuit’s 2008 mandamus decision in In re Core Communications, the court
gave the agency more time to respond to a 2002 remand without vacatur, but there was not a
long history of agency action prior to the initial challenge and no constitutional concerns were
raised. After six years of agency inaction, the court granted a writ of mandamus and directed the
FCC to explain the legal basis for an order establishing intercarrier ISP compensation rules
within six months from the date of oral argument, or have the rules vacated. 249 The court had
remained involved in the case in the intervening years since its 2002 decision in WorldCom, Inc.
remanding without vacating the rules, and had twice previously declined the petitioner’s request
for a writ of mandamus to give the agency the opportunity to respond. 250 In its 2008 decision,
the D.C. Circuit again reiterated its desire to avoid interfering in the agency decision-making
process. 251 Both the amount of time given to the FCC and the court’s explanation of its actions
indicate the deference the court afforded to the FCC in this case.
COUNCIL TREE COMMUNICATIONS: CERTIORARI DENIED

Council Tree Communications v. FCC is a rare example of the agency requesting remand
without vacatur. 252 In this case, Council Tree sought review in the Third Circuit of Federal
Communication Commission orders revising rules governing eligibility for “designated entity”
credits, which permit small businesses to obtain discounts in auctions for certain wireless
licenses. The Commission held two spectrum auctions under the revised rules, which together
netted nearly $ 33 billion in winning bids. Both auctions were held while Council Tree’s petition
for reconsideration of the order was pending before the Commission.
Council Tree previously sought judicial review on its petition for reconsideration before
the agency acted on it, and the Third Circuit dismissed this request because it was “incurably
premature.” 253 In their subsequent challenge to the rules, brought after the FCC denied its
petition for reconsideration, Council Tree asked the Third Circuit not only to vacate the rules but
also to use its equitable authority to rescind the two auctions that had been conducted while they

247

Remarkably, it appears that the FCC issued an order vacating the regulations in the same year, but that the rules
were not removed from the Code of Federal Regulations for over a decade. See Letter from Representatives Fred
Upton and Greg Walden, House Committee on Energy and Commerce to the Hon. Julius Genachowski, Chairman,
Federal Communications Commission (May 31, 2011), available at
http://archives.republicans.energycommerce.house.gov/Media/file/Letters/112th/053111fccfairnessdoctrine.pdf.
248
Plaintiffs had sought repeal of the rules two decades prior to the court’s decision, but the agency failed to take
final responsive action on the petition for rulemaking until 1998. When the case came before the D.C. Circuit, the
Commission was deadlocked as to the appropriate response and thus the rules remained in effect. Radio-Television
News Dirs. Ass'n v. FCC, 184 F.3d at 877-78.
249
WorldCom, Inc. v. FCC, supra note 238, writ of mandamus issued in In Re Core Commc’ns, Inc, 531 F.3d 849,
859 (D.C. Cir. 2008).
250
In Re Core Commc’ns, Inc., supra note 249 at 853.
251
Id. at 859.
252
Brief for the Federal Respondents at 15-23, Council Tree Commc’ns, Inc. v. FCC, 619 F.3d 235 (3d Cir. 2010),
cert. denied, 131 U.S. 1784 (2011).
253
Council Tree Commc’ns, Inc. v. FCC, 503 F.3d 284, 288 (3d Cir. 2007).

39

were in place. It argued that the rules were flawed and that they had been adopted without
proper provision for notice-and-comment rulemaking.
The Federal Communications Commission in its reply brief affirmatively defended its
regulations but also asked the court to consider remanding without vacating the rules if it found
that they had been adopted in error. 254 The agency argued that Council Tree had not
demonstrated that the agency could not readopt the standards upon reconsideration. Further, the
FCC contended that even if the rules were vacated there would be no basis for undoing its
auction. Finally, they argued that undoing the auction would be seriously disruptive, and that
“less disruptive remedies, such as providing petitioners with access to alternative spectrum are
available.” 255
The Court of Appeals for the Third Circuit found that two portions of the designated
entity rules had been adopted without adequate notice and comment. However, the court
expressly declined to remand without vacating the rules; it determined that vacation was unlikely
to produce serious disruption since the FCC would still have some regulations in place to govern
auction participation. 256 The Third Circuit also declined to use its equitable authority to rescind
the auctions:
[S]ince it would involve unwinding transactions worth more than $30 billion,
upsetting what are likely billions of dollars of additional investments made in
reliance on the results, and seriously disrupting existing or planned wireless
service for untold numbers of customers. Moreover, the possibility of such largescale disruption in wireless communications would have broad negative
implications for the public interest in general. 257
The court offered no equitable relief to Council Tree, despite the FCC’s apparent concession that
such was within the court’s equitable authority.
Council Tree sought Supreme Court review of the Third Circuit’s decision. As discussed
above, the petition for certiorari characterized the Third Circuit’s decision as remanding without
vacating unlawful agency action under 5 U.S.C. § 706(2). It would be foolhardy to speculate on
the Supreme Court’s reasons for declining to review this claim, but it is worth noting a few
problems with the petitioner’s certiorari petition.
First, as discussed above, petitioner’s claim that there was a spilt among the Courts of
Appeals regarding the legality of the remedy under the APA was unfounded. 258 Second, Council
Tree was using a challenge to the FCC’s regulations to mount a collateral attack on auctions
conducted under those regulations. The regulations themselves were vacated. Council Tree
argued that the decision not to rescind the auction results was effectively remand without
vacatur. However, the Third Circuit never found that the FCC’s auctions violated the standards
of review set forth 5 U.S.C. § 706(2) and had declined Council Tree’s request stay the auctions
before they took place. 259 The Supreme Court would have had to first determine that the
auctions were unlawful and in violation of 5 U.S.C. § 706(2) before it could turn to question the
254

Brief for Respondents at 50-51, Council Tree Commc’ns, Inc. v. FCC, No. 06-2943 (3d Cir. filed Oct. 13, 2006).
Id. at 53-54.
256
Council Tree Commc’ns, Inc. v. FCC, 619 F.3d 235, 258 (3d Cir. 2010).
257
Id. at 257.
258
See supra notes 168-182 and accompanying text.
259
Council Tree Commc’ns, Inc. v. FCC, supra note 256 at 248.
255

40

petitioner presented. Even if the court had a desire to answer the question presented regarding
the legality of the remedy under the APA, the facts were not well suited to a disposition on this
point.
PERSPECTIVES FROM AGENCY ATTORNEYS

The author met informally with attorneys at the FCC to discuss the remedy of remand
without vacatur. This conversation is summarized below and reflects the personal viewpoints of
the attorneys given their individual experiences with the remedy, rather than the formal position
of the Federal Communications Commission.
The FCC, according to agency attorneys, rarely requests remand without vacatur,
preferring instead to ask the court to affirm the challenged decision. They also noted that, while
the agency has occasionally asked for a voluntary remand of a challenged decision, it would not
typically ask for vacation in the interim under the theory that some rule is better than no rule.
When asked about academic views suggesting that vacatur is the appropriate remedy
where an agency decision cannot be rehabilitated on remand, agency attorneys expressed support
for the flexible equitable approach embodied in the two prongs of Allied-Signal. 260 Jacob Lewis,
Associate General Counsel and Chief of the FCC’s Litigation Division, suggested that a more
rigid application of remand without vacatur could hinder the court’s efforts to avoid the
inflexibility and potential disruption of a rule permitting vacation only. It might also restrict the
ability of agencies to identify cases where disruption from vacatur would be a real problem.
Joel Kaufman, Associate General Counsel and Chief of the Agency’s Administrative Law
Division, explained challenges he thought the agency might face if asked to brief the court on
whether the remedy should be employed and on the appropriate timeframe for the agency’s postremand regulatory response. First, he thought it would be difficult to know, prior to reading the
court’s decision to determine the basis for remand, whether the decision could be rehabilitated
based on the existing record. Second, the Commission on remand examines changed
circumstances and the need to refresh the record by providing for further notice and comment.
Further, he felt that the agency needs discretion to balance limited resources and its regulatory
priorities.
According to attorneys at the agency, the FCC’s Office of General Counsel tracks
remands in judicial decisions but primary responsibility for responsive action rests with the
relevant operating bureau, which would draft the agency’s response. The oversight process on
remand is relatively informal, but interested parties can follow-up with bureau staff to encourage
prompt action. Parties also have the option to pursue a writ of mandamus to compel agency
action.
Agency attorneys explained that the agency responds to ambiguous remands on a caseby-case basis. Where a decision is sufficiently opaque, the agency has the option to seek
clarification from the court. At least once, the agency has filed a motion for clarification—or

260

988 F.2d 146 (D.C. Cir. 1993).

41

alternatively, for stay of the mandate—to determine whether the remanded regulations had been
vacated. 261 In another case, opposing parties asked the court for clarification. 262
Agency decisions that are vacated are removed from the Code of Federal Regulations
after final disposition, providing formal notice to regulated entities that they are no longer in
effect. Additionally, FCC references remands it is responding to in subsequent Commission
decisions. 263 The Commission has also made affirmative efforts to ensure that the public has
access to information about court cases involving the agency. The FCC’s Office of General
Counsel posts recent FCC litigation filings, court opinions, and occasionally all briefs in
significant cases on its website. 264 The website also identifies major court cases involving the
agency and any pending appellate cases. 265 This voluntary undertaking is commendable.
A separate area of the agency’s website provides public access to information about the
Commission’s regulatory activity and adjudicatory orders. Information about these actions is
not, as a matter of standard practice, relationally linked to the portion of the website containing
judicial opinions affecting those decisions. Attorneys at the agency felt that it could be
challenging, as a practical matter, to provide such connections.

C.

THE FEDERAL ENERGY REGULATORY COMMISSION (FERC)

The D.C. Circuit has employed the remedy of remand without vacatur seven times in
cases involving FERC since 1985. On more than five other occasions, the D.C. Circuit has
remanded FERC orders without specifying whether they were also vacated. All of the cases
employing the remedy involved challenges to adjudicatory decisions. Six cases were brought
under the judicial review provisions of the Natural Gas Act and one case was reviewed under the
Federal Power Act’s judicial review provisions. 266 All related to terms of service in energy
markets. The orders at issue ranged in scale from major actions imposing nationwide obligations
to orders affecting a segment of a regional market to approvals of contract or rate changes
affecting individual customers.

261

Motion of Federal Communications Commission for Clarification, or Alternatively for Stay of Mandate at 4-5,
Qwest Corp. v. FCC, No. 99-9549 (10th Cir. filed, Aug. 21, 2001).
262
Illinois Pub. Telecomm. Ass’n v. FCC, supra note 153 (clarifying the court’s intention to vacate remanded FCC
rules).
263
E.g., Federal - State Joint Board on Universal Service; High - Cost Universal Service Support, WC Docket No.
05 - 337, CC Docket No. 96 - 45, Order on Remand and Memorandum Opinion and Order, 25 FCC Rcd 4072, 4073,
¶ 1 (2010) (identifying remand order in first paragraph and footnote and stating “[t]he scope of this Order on
Remand and Memorandum Opinion and Order is narrow; it responds to the Tenth Circuit’s remand.”)
264
FCC, The FCC and Courts, available at http://www.fcc.gov/encyclopedia/fcc-and-courts#pending (last accessed
Sept. 20, 2013).
265
Id.
266
In general, most cases involving FERC arise under the judicial review provisions of the Federal Power Act, 16
U.S.C. § 825(l)(b), or the Natural Gas Act, 15 U.S.C. § 717r(b). Both statutes provide the reviewing court, upon
filing of the administrative record, with exclusive jurisdiction “to affirm, modify, or set aside. . . in whole or in part”
an order of the Commission in a proceeding in which the challenging party was aggrieved.

42

Approximately thirty FERC appeals are decided each year, few of which are remanded
and no more than one or two of which would involve remand without vacatur. 267 As a practical
matter, vacation of the underlying order is the typical remedy on remand. In general, the vast
majority of FERC’s cases pertain to adjudication and address ongoing rate terms or conditions or
the rules governing service in electric and natural gas markets. Sometimes vacation in these
contexts can create questions for the parties about what rates or terms and conditions govern the
service being provided. 268 It could be unsettling to ongoing service, and the consequences are
not always as simple as money changing hands. For example, vacation can lead to gaps in
payment or in provision of service or to changes in earlier-negotiated terms and conditions.
Given the regulatory context, one might expect a number of remand without vacatur
cases involving the agency to hinge on Allied-Signal’s disruption factor. However, only three
examples turning on the substantial disruption potential of vacation were identified, including
one that dates to 1985. 269 Attorneys at FERC identified the D.C. Circuit’s 2013 remand without
vacatur opinion in Black Oak Energy, LLC v. FERC as a good example of the complications and
disruptions that can be caused if rates are settled prematurely. 270 In this case, the D.C. Circuit
heard a challenge to a surplus distribution system for the PJM market (covering the East Coast,
Appalachia, and parts of the Midwest) by virtual marketers, because the program tied refunds to
payment of fixed grid costs. The virtual marketers had previously shared fixed grid costs but
received no share of the surplus. A 2009 FERC order required PJM to refund the cost-based
share of the surplus to the virtual marketers. 271 A 2011 FERC order revisited the issue, this time
ordering PJM to recoup the refunds paid to the virtual marketers, and the agency subsequently
reaffirmed this finding. 272 The D.C. Circuit determined that FERC’s change in position from
2009, requiring recoupment of refunds from the virtual marketers, was arbitrary and capricious
because the agency had failed to sufficiently justify its decision in light of the difference between
denying refunds and recouping them in its decision. 273 Citing the disruption that would be
created by forcing the non-profit PJM to pay out refunds (which it would have to impose on
market participants) and the transaction costs potentially associated with a subsequent change in
FERC’s position, if one were to occur, the court opted to remand without vacating the FERC’s
recoupment order pending final resolution of the dispute at the agency level. 274
As in Black Oak, LLC v. FERC, nearly all remand without vacatur decisions involving
FERC have turned on the need for further explanation of the agency’s decision rationale. For
example, in TransCanada Pipeline, Ltd. v. FERC, the court remanded a FERC order without
267

Telephone interview with Robert Solomon, Solicitor; Lawrence Greenfield, Associate General Counsel, Energy
Markets-1; Christy Walsh, Special Counsel, Office of the General Counsel (Aug. 29, 2013).
268
Id.
269
Apache Corp. v. FERC, 627 F.3d 1220 (D.C. Cir. 2010) (finding both that the agency could justify its decision on
remand and that the disruptive consequences of vacating would be substantial); Md. People’s Counsel v. FERC,
768, F.2d 450 (D.C. Cir. 1985) (finding serious flaws in interim rules but also that vacation may do more harm than
good).
270
No. 08-1386 (D.C. Cir. Aug. 6, 2013).
271
Id., slip. op. at 19 (citing Black Oak Energy, LLC v. PJM Interconnection, LLC, 128 FERC ¶ 61,262, 62,222
(2009)).
272
Id. at 20 (citing Black Oak Energy, LLC v. PJM Interconnection, LLC, 136 FERC ¶ 61,040, 61,162-64 (2011)
and Black Oak Energy, LLC v. PJM Interconnection, LLC, 139 FERC ¶ 61,111, 61,870-82 (2012)).
273
Id. at 23.
274
Id. at 25.

43

reaching the substance of the decision “in order to secure an official explanation” of the agency’s
reasoning. 275 Earlier cases focused less on the possibility of rehabilitation in employing the
remedy, and more on the need for explication. 276 More recently, the court has employed the
remedy after analysis consistent with Allied-Signal, finding the possibility of rehabilitation of the
agency’s decision after explanation to be “serious” or “significant,” or (in a case where potential
disruption was substantial) “plausible.” 277
PERSPECTIVES FROM AGENCY ATTORNEYS

The author spoke with attorneys at FERC to discuss the remedy of remand without
vacatur. This conversation is summarized below and reflects personal perspectives, rather than
the formal position of the Federal Energy Regulatory Commission. 278
Although remand without vacatur is used occasionally with FERC, the agency rarely if
ever requests it. Attorneys from the agency were not aware of any examples of FERC requests
for the remedy. Rather, it appears the remedy is employed at the court’s own instigation. When
this happens, agency attorneys typically view it as a positive development. Vacatur may limit
the agency’s discretion on remand, whereas remand without vacatur may provide the agency
with more flexibility in responding to the court’s mandate. In some cases, remand without
vacatur signals to agency attorneys that FERC can take the same action on remand, albeit with a
better justification. In other cases, it demonstrates an effort by the court to avoid any disruptive
effects and maintain the status quo. Remand without vacatur can avoid uncertainty for the
industry, particularly when rules for ongoing services are at issue.
Agency attorneys explained that the Solicitor’s office initially interprets the scope of the
court’s mandate on remand. They did not view ambiguous remands as a problem. The court’s
use of the term “vacate” clearly signals to the agency that it must vacate the challenged action,
but is normally only one or two words in an opinion. Attorneys at the agency explained that they
examine the actual substance of the decision for guidance on how to proceed on remand. If
necessary, they felt that the agency could seek clarification where an opinion did not specify
whether the challenged agency action was vacated, and would be able to do so in the time period
before the mandate issues. 279
275

24 F.3d 305, 310 (D.C. Cir. 1994); see also Phil. Gas Works & Lighting Co. v. FERC, 989 F.2d 1246 (D.C. Cir.
1993) (remanding for a fuller explanation).
276
E.g., United Dist. Co. v. FERC, 88 F.3d 1105 (D.C. Cir. 1996) (holding that “[t]his is not to say, however, that it
is impossible, or even improbable that the Commission on remand can establish a convincing rationale for
exempting pipelines”).
277
Black Oak Energy, LLC v. FERC, No. 08-1386, slip. op. at 25 (D.C. Cir. Aug. 6, 2013) (plausible); Apache
Corp. v. FERC, 627 F.3d 1220, 1223 (D.C. Cir. 2010) (serious); Williston Basin Interstate Pipeline Co. v. FERC,
519 F.3d 497, 504 (D.C. Cir. 2008) (significant).
278
Telephone interview with Robert Solomon, Solicitor; Lawrence Greenfield, Associate General Counsel, Energy
Markets-1; Christy Walsh, Special Counsel, Office of the General Counsel (Aug. 29, 2013).
279
In general, FERC attorneys felt that many concerns with the remedy can be dealt with in motion practice. The
agency could move for remand without vacatur where it was concerned about the disruptive effects of vacatur;
conversely, parties could move for vacation in light of an order remanding without vacatur. E.g., in Texas Pipeline
Ass’n v. FERC, No. 10-60066 (5th Cir. 2011), FERC requested that the court narrow the scope of vacatur. The
court granted that request. Telephone interview with Robert Solomon, Solicitor; Lawrence Greenfield, Associate
General Counsel, Energy Markets-1; Christy Walsh, Special Counsel, Office of the General Counsel (Aug. 29,
2013).

44

When asked about academic concerns that the remedy can reduce agency incentives to
engage in reasoned decision-making or respond to a remand, attorneys at the agency stated that
they do not feel this is a problem. They explained that FERC’s orders on remand are the most
likely orders to receive appellate review, and that the desire to avoid continued litigation
generally provides the agency with an incentive to do a good job. Further, they felt that highly
regulated industries hold the agency to account.
Agency attorneys explained that FERC always has a responsibility to make a reasonable
decision after consideration of the record evidence. On remand, the Commission may decide to
offer a better justification for a choice it made, it may want to change the challenged decision, or
it may need to reconsider the issue before making a decision. FERC has three general procedural
options for responding to a remand decision: issue a new order without further proceedings, have
a paper hearing, or hold a full evidentiary hearing before an Administrative Law Judge. While
the agency will take notice of earlier comments in subsequent proceedings, it may also rely on
newly gathered evidence in making a decision, particularly where there are changed
circumstances or it is necessary to respond to the court’s mandate or intervening events.
The timeframe for agency response will naturally vary depending on the procedures used,
ranging from a period of several months to two or three years. For example, if the agency holds
a hearing on the issue remanded it will not produce an immediate final decision. Nonetheless,
attorneys at the agency felt that hearings or further proceedings can be a useful tool and provide
good information with which to make better decisions. Where the court instructs the agency to
act in a timely or expeditious manner the agency will follow these, or any other, instructions.
For example, the agency complies with any judicial opinions that request progress reports to the
court. Internally, the agency maintains a computer database that tracks remands, individual
teams are responsible for follow-up, and the Solicitor’s Office will follow that progress.
Attorneys at the agency thought it had been many years since a writ of mandamus had been
requested from a court because of failure to act in response to a judicial remand.
In responding to a remand, FERC in its orders uniformly identifies the judicial decision
remanding the prior agency action. Agency orders are posted on the FERC website. 280 Most
judicial opinions are also posted online after briefing and a decision on the merits. 281 Appellate
briefs are also posted on FERC’s website in an effort to provide value to the public and be
helpful to the regulated industry. The agency would not normally issue a Federal Register notice
of a judicial remand, but might issue notices in the course of responding to remands. 282 For
example, the agency would normally publish Notices of Inquiry, Notices of Proposed
Rulemaking, etc. in the Federal Register. Attorneys at the agency commented that industry has a
small but active trade press that is attentive to remands of FERC decisions.

280

FERC Decisions and Notices, available at https://www.ferc.gov/docs-filing/dec-not.asp.
The agency might not, for example, include a dismissal of an appeal or some non-public enforcement order.
Legal Resources are available on FERC’s website, available at https://www.ferc.gov/legal/court-cases.asp.
282
E.g., 2010 Quadrennial Regulatory Review: Proposed Rule, 77 Fed. Reg. 2868 (Jan. 19, 2012) (seeking comment
on certain aspects of an agency order remanded in a decision by the Court of Appeals for the Third Circuit, decision
cited in first paragraph of synopsis).
281

45

D.

CASE STUDY CONCLUSIONS

The case studies above confirm many of the findings from a more general review of the
case law. Use of the remedy has increased since 2000, but not dramatically; courts occasionally
issue remand orders that do not specify whether agency action has been vacated; the remedy has
been applied, without discussion of any distinction, to agency adjudicatory and rulemaking
decisions; the statutory basis for judicial review can vary; each Allied-Signal factor continues to
have independent relevance, and sometimes both are relevant to a particular case; where the
Allied-Signal factors were not discussed the remedy was employed summarily; courts seldom
imposed deadlines for agency reconsideration or stayed compliance deadlines, and writs of
mandamus were issued only rarely in response to agency inaction on remand.
However, the more in-depth examination of remand without vacatur cases involving
EPA, FERC, and FCC also produced some new insights, presented below under the same
category headings used to examine the larger set of cases.
Type of Agency Decisions: Remand without vacatur can serve important agency
interests, for example by allowing agencies to continue to carry out statutory mandates even
where their initial approach was flawed. Based on informal discussions with attorneys at FERC
and the FCC, as well as a limited review of available briefs, it appears that the remedy is
ordinarily employed sua sponte by the court in cases involving these two agencies. Attorneys at
the three agencies view the remedy favorably, and the FCC occasionally requests its application.
Parties to Clean Air Act litigation—including EPA—also sometimes request the remedy.
Notably, EPA, FERC, and the FCC each oversee or operate markets: FCC for wireless
communications spectrum, FERC for physical gas and electric power, and EPA for air pollution.
In theory, vacation of agency orders or rules governing market participation may be particularly
disruptive—EPA pointed to market disruption caused by vacation of the Clean Air Interstate
Rule in requesting reconsideration and remand without vacatur; and the court also considered
market disruption and transaction costs in a case involving FERC. 283 Employment of remand
without vacatur is not, however, limited to cases involving EPA, FCC, and FERC that have
market-wide implications. The remedy has also been applied to more discrete decisions by these
agencies, such as actions promulgating technology-based emissions standards for particular
industries or decisions regarding the terms of individual customer contracts.
Statutory Basis for Review: Only the FCC’s cases were reviewed under the
Administrative Procedure Act, 5 U.S.C. §706(2), which provides that the court “shall hold
unlawful and set aside agency action, findings, or conclusions” that violate its standards of
review. The Federal Power Act, 16 U.S.C. § 825(l)(b) and the Natural Gas Act, 15 U.S.C. §
717r(b), authorize the court to “affirm, modify, or set aside. . . in whole or in part” orders of the
Federal Energy Regulatory Commission. Courts reviewing EPA actions under the Clean Air
Act’s standard for review, 42 U.S.C. § 7607(d), “may reverse any such action” when the
standard of review is not met.

283
Few D.C. circuit cases were identified employing the remedy to other agencies that regulate markets, such as the
Commodity Future Trading Commission or the Securities Exchange Commission. The remedy may provide similar
theoretical benefits in these other settings, even if it has not been employed in practice.

46

Put simply, the literal reading of the APA (which some argue forbids remand without
vacatur) does not translate perfectly to these other statutory contexts. The varied bases for
statutory review (FCC decisions under the APA, EPA decisions under the Clean Air Act, and
FERC decisions under the Federal Power Act and the Natural Gas Act) were not explicitly part
of the remedial calculus in cases involving these agencies, with the notable and subsequently
withdrawn exception of Honeywell. In that case EPA defended the legality of the remedy under
the Clean Air Act’s judicial review provisions. No decisions were identified addressing the
scope of the court’s remedial authority to remand without vacating agency action under either the
Federal Power Act or the Natural Gas Act.
In some cases, courts analyzed their choice of whether to employ the remedy by
examining the statutory context in which the agency’s decision was made. For example, in
Clean Air Act litigation courts often examined the statutory goal of improving air quality in
allowing regulations to remain in place. Similarly, the reviewing court in Fox Television
Stations, Inc. v. FCC, examined the retrospective review provision of Section 202(h) of the
Telecommunications Act in discussing its remedial authority to vacate regulations the FCC had
not determined met Section 202(h)’s public interest standard. 284
Allied-Signal: Many remand without vacatur decisions, including those that do not
explain why the remedy is employed, focus on the need for agencies to better explain nuances of
their decisions. The standard for the possibility of rehabilitation of agency action after
explanation on remand is not always high, even where potential disruption of vacatur is not
discussed. This finding makes some sense given that courts ordinarily permit (and sometimes
even encourage) agencies to alter their position on remand, but is more troubling where the
possibility of rehabilitation is the only stated basis for employing the remedy.
Procedural Protections: In general, it appears that motion practice is able to provide
those involved in litigation with relief respecting application of the remedy. Agencies, other
parties, or intervenors in litigation can ask the court to remand without vacating agency action,
move for clarification of whether the agency action was vacated if a judicial opinion is unclear,
request reconsideration of the judicial remedy, or petition the court for a writ of mandamus
ordering the agency to take responsive action.
Responses to remands at FERC and FCC can take varied forms, and attorneys at these
agencies expressed their view that procedural flexibility may be required to permit the agency to
tailor an appropriate response to the judicial mandate that also accounts for changed
circumstances and ensures adequate procedural protections (such as time for notice-andcomment) at the agency level. Both agencies provides copies of judicial opinions, including
those remanding without vacating agency action, and some related briefs on their websites as
well as identify prior legal history in written responses to remand.

284

280 F.3d at 1033.

47

IV.

CONCLUSIONS AND RECOMMENDATIONS

Remand without vacatur is relatively recent and an unusual judicial remedy that permits
agency actions to remain in place after a judicial remand requires further agency response. The
remedy has broad applicability and has been employed in substantive areas of law from
regulation of interstate air pollution to telecommunications to alien worker wage and visa rules.
Use of the remedy in the D.C. Circuit has increased over time but not dramatically. Though the
remedy was employed by this Circuit in cases involving administrative actions by more than
twenty federal agencies, for most agencies—with the notable exception of EPA—it occurred
infrequently. As a descriptive matter, there appears to be a presumption against the remedy that
is consistent with a long history of routine vacation of unlawful agency actions.
Remand without vacatur, when employed appropriately, affords courts the equitable
flexibility to fashion remedies that serve the best interests of litigants, regulated entities, or other
institutional interests. Its potential benefits are not in real dispute. It can avoid gaps caused by
vacation of agency rules or orders as well as resultant disruption in provision of government
benefits, the regulatory environment, or in regulated markets. It can sustain agencies that rely on
user fees, ensure that those who rely on government determined rates or reimbursement rules
know what they should be paid, and protect reasonable reliance interests in the agency’s action,
while also requiring agencies to respond to concerns underlying successful challenges.
Nonetheless, remand without vacatur is not without consequence or critics. It alone
cannot provide relief for litigants after successful challenges to agency actions, responsive
agency action is necessary. Critics of the remedy argue that not vacating remanded agency
actions reduces incentives for agencies to respond and to comply with waived legal requirements
in future proceedings. In practice, however, it appears that these prudential concerns have not
been realized, perhaps in large part due to the relative infrequency with which the remedy is
used. Similarly, concerns that the remedy tolerates agency deviations from congressional
directives and permits activist judges to assert their own interests in contravention of
constitutional values are unlikely to present a systemic problem. Remand without vacatur is
employed in cases involving a wide assortment of agencies but, with the exception of EPA, most
agencies experience the remedy only occasionally. In the D.C. Circuit, the court has most often
used the remedy in per curium opinions and without significant dissent; it has been employed by
a majority of sitting judges. Even if the court were prone towards self-aggrandizement, there
may be a tension between theorized judicial and agency activism, just as there may be variation
between agency and congressional preferences or judicial and congressional preferences under
our Constitutional structure with its checks and balances.
An important measure of the remedy’s success is the degree to which disputes are finally
resolved on remand. It appears that this is the normal occurrence, though as described below this
can be difficult to ascertain. Subsequent case history following remand without vacatur was rare.
Only three D.C. Circuit cases were identified where the court issued a writ of mandamus in
response to agency inaction after remand without vacatur. The remedy is likely achieving its
intended results.

48

A.

VALIDITY OF THE REMEDY

UNDER THE ADMINISTRATIVE PROCEDURE ACT

“It is perhaps the wonder, or maybe the impossible mission, of a single tersely worded
law like the APA’s section 706 that it remains the source of all this activity and the changing hue
of judicial review.” 285 — Judge Patricia M. Wald, writing fifty years after passage of the APA.
The nature of administrative law has changed fundamentally since the 1946 adoption of
the Administrative Procedure Act. 286 An important aspect of this evolution has been an increase
in availability of judicial review for particular plaintiffs (such as public interest groups not
subject to enforcement under the challenged agency action), in specific settings (such as
preenforcement review), and to permit suits against the government (through relaxation of
sovereign immunity). Remand without vacatur is a natural response to these advancements.
Some judges and scholars argue that remand without vacatur contravenes the plain
language of the judicial review provisions of the Administrative Procedure Act (APA). 287
However, despite the occasional dissent, no cases were identified in which a federal Court of
Appeals held that remand without vacatur was unlawful under the APA or another statutory
standard of review. Rather, courts appear to generally accept the remedy as a lawful exercise of
equitable remedial discretion. 288 Those who believe Congress clearly prescribed vacatur for
actions found to transgress one of the APA’s several standards of review, and who hence reject
the application of Hecht and progeny to support a tradition of equitable judicial discretion, are
left with inflexible remedies. Vacatur will not always provide relief for successful challengers of
agency action—even where the agency’s errors were not clearly harmless.
The remedy should be considered valid under the Administrative Procedure Act, 5 U.S.C.
§ 706(2). 289 It fits naturally with the APA’s judicial review provision when viewed as a whole.
The provision requires judges to interpret and apply the broad language in its standards of
review. It also incorporates the rule of prejudicial error, which tasks courts with deciding when
agency error is harmless and when it warrants relief. Interpreting the same judicial review
provision that entrusts these determinative choices to judges as depriving courts of the flexibility
needed to craft actual relief for litigants makes little sense in the context of the modern
administrative state.

285

Patricia M. Wald, Judicial Review in Mid-passage: The Uneasy Partnership Between Courts and Agencies Plays
On, 32 TULSA. L.J. 221, 230 (1996).
286
See Richard B. Stewart, Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1712 (1975);
Richard B. Stewart, Administrative Law in the Twenty-First Century, 78 N.Y.U. L. REV. 437, 439-44 (2003)
(describing evolution from common administrative law to the “interest representation” model).
287
E.g., Checkosky v. SEC, supra note 49 (Randolph, J., separate opinion).
288
Remand without vacatur fits comfortably within a tradition of equitable judicial remedial discretion. Levin,
supra note 2.
289
If the legality of remand without vacatur under the Administrative Procedure Act, 5 U.S.C. § 706(2), is
successfully challenged, the Administrative Procedure Act should be amended to permit the remedy.

49

ON STATUTORY REVIEW OF AGENCY ACTION

Congress may authorize judicial review of and relief from agency action under specific
statutory provisions. Some statutory review provisions may permit remand without vacatur or
clearly state that they are not intended to displace remedial authority. 290 Others do not mention
remand without vacatur, but arguably leave the court with sufficient discretion to employ the
remedy. 291 Some are silent altogether as to remedy. 292 Although no examples were identified,
statutes could also expressly forbid application of remand without vacatur. Absent such an
express congressional directive, and consistent with equitable traditions and existing judicial
precedent, the remedy should be considered valid under statutory provisions authorizing judicial
review of agency actions.

B.

APPLICATION OF REMAND WITHOUT VACATUR

APPLICATION BY COURTS

Courts have long exercised equitable discretion in crafting remedies on review of agency
action, except where remedial options are constrained by clear congressional directives. 293 In
exercising this discretion, they appear to have generally adopted a default of vacating agency
actions that are unlawful or transgress statutory standards of review. Where vacatur serves the
interests of prevailing parties challenging the agency’s action it is and should be the ordinary
remedy.
Nonetheless, equitable considerations occasionally justify the unusual remedy of remand
without vacatur. Longstanding judicial precedent in the D.C. Circuit, to which other Courts of
Appeals have looked for guidance, supports application of the remedy in appropriate cases.
Generally, judicial application of the remedy has found favor in cases in which the challenged
agency action, while invalid, is not otherwise seriously deficient and in cases where vacation
would have disruptive consequences. 294 Courts have also employed the remedy when vacatur
would not serve the interests of the prevailing party that were prejudiced by the agency’s error,
and where vacation would not further the substantive aims of the statute authorizing the agency’s
challenged action. 295 This reasoning appears to drive a substantial number of decisions
290

E.g., Regulatory Flexibility Act, 5 U.S.C. § 611(a)(4) (providing that where corrective action is required, the
court is to remand the rule to the agency but may permit continued enforcement where it “is in the public interest.”);
Energy Policy and Conservation Act, 42 U.S.C. § 4306(b) (providing “remedies provided for in this subsection shall
be in addition to, and not in substitution for, any other remedies provided by law”).
291
For example, the Federal Power Act and the Natural Gas Act both provide the reviewing court, upon filing of the
administrative record, with exclusive jurisdiction “to affirm, modify, or set aside. . . in whole or in part” orders of
the Federal Energy Regulatory Commission. Federal Power Act, 16 U.S.C. § 825(l)(b); Natural Gas Act, 15 U.S.C.
§ 717r(b).
292
See, e.g., 30 U.S.C. § 811(d).
293
See Levin, supra note 2.
294
N. Air Cargo v. U.S. Postal Service, 674 F.3d 852, 860-61 (D.C. Cir. 2012); Allied-Signal, Inc. v. NRC, 988 F.2d
146, 150-51 (D.C. Cir. 1993).
295
E.g., Envtl. Def. Fund v. EPA, 898 F.2d 183, 190 (D.C. Cir. 1990) (holding “no party to this litigation asks that
the court vacate the EPA’s regulations, and to do so would at least temporarily defeat petitioner’s purpose, the

50

involving the remedy and arising under the Clean Air Act, which comprise a sizeable portion of
its overall use. Remand without vacatur may also be appropriate in other circumstances not
considered in the cases identified in this report or in the following recommendations.
On review of agency action, courts should uniformly and clearly identify whether they
are vacating the agency action. Research indicates that ambiguous remand orders—i.e., orders
that do not clearly identify whether agency actions are also vacated—occur with some regularity.
Such remedial ambiguity may lead to confusion among the parties and the public generally.
Parties to the action, including agencies, may need to resort to motion practice to clarify the
court’s remedial intention. Where they do not, the general public—as well as individuals or
entities whose legal rights or obligations are affected by the judicial decision—may be left in a
state of uncertainty as to the legal status of the challenged agency action. This is particularly
problematic where an agency decision regulates conduct and/or permits enforcement actions
against individuals or entities.
When courts remand but do not vacate challenged agency actions, they should clearly say
so. Many judicial opinions conclude with a summary of the nature of the order (i.e., “the petition
for review is dismissed,” “vacated and remanded,” “affirmed”). This is a commendable practice
and should be extended to include language specific to remand without vacatur in cases where
the remedy is employed. For example, the court might close its opinion with a simple statement
that the case is “remanded but not vacated” or “remanded without vacatur.”
Further, courts should consider explaining why remand without vacatur is appropriate in
a particular case. D.C. Circuit opinions employing the remedy appear to uniformly identify the
problems with the remanded agency decision, but they do not always explain the rationale
supporting the court’s remedial choice. This can create confusion about the appropriate response
on remand because the remedy is sometimes applied to allow agencies to retain their decision
while revisiting limited improprieties, but it may also be applied where a fundamental flaw in the
agency’s reasoning requires a new course of agency action and where the initial agency approach
was not set aside simply as a matter of practical concern over disruption that would result.
If agency actions are not seriously deficient, it may be that less explanation of the
decision to remand without vacatur is necessary. Less explanation may also be appropriate
where the disruptive consequences of vacatur are easily understood. Relatively greater
explication may be prudent where agency actions are clearly deficient but are nevertheless
allowed to remain in place on remand.
AGENCY RESPONSES

Determining whether an agency has responded to a judicial remand can be a challenging
endeavor, even for those familiar with the nuances of administrative law and especially for the
more general public or those who lack access to commercial legal databases. 296 At a minimum,
enhanced protection of environmental values covered by the [statutory Prevention of Significant Deterioration]
provisions”).
296
Associate Dean and Professor Emily Meazell has called the task of identifying recurring litigation after an initial
judicial remand “extraordinarily difficult” and has documented agency actions issued in response to remands that do
not identify the remanding judicial opinion. Emily Meazell, Deference and Dialogue in Administrative Law, 111
COLUM. L. REV. 1722, 1786 (2011).

51

agencies should identify or post judicial opinions vacating or remanding agency regulations in
the applicable rulemaking docket, whether on the agency website or on Regulations.gov.
Agencies should also consider posting informational notices of vacated regulations on the
agency’s website. Finally, they should provide official notice of vacated regulations in the
Federal Register. 297 Any such notices or postings should include a short statement specifically
identifying the judicial opinion as well as the affected agency action, together with any unique
identifiers for the action (like a Regulation Identifier Number or RIN). 298
Ambitious agencies could go a great deal further to inform the public about their
responses to judicial remands with or without vacatur. Several data elements may be needed to
get a full picture, including: (1) information about the underlying decision, (2) information about
the remand (i.e., the judicial opinion), (3) documentation of the agency response on remand, and
(4) records of any subsequent judicial (and sometimes (5) agency) proceedings. 299 While
agencies may provide each of these data elements on their websites—a commendable practice—
they rarely present them together with explicit or virtual connections. Rather, individual data
elements, such as judicial opinions or agency orders or rules, tend to be siloed on different areas
of agency websites. Agencies should strive to bridge these informational gaps, though doing so
may require overcoming technological, resource, and bureaucratic barriers.
Prospectively, when responding to a judicial remand without vacation of an agency rule,
agencies should provide information in the Unified Agenda of Federal Regulatory and
Deregulatory Actions regarding their future plans. In any responsive agency action (rulemaking
or otherwise), agencies should clearly identify the initial agency action together with any unique
identifiers, as well as the remanding judicial opinion.

C.

RECOMMENDATIONS

VALIDITY OF THE REMEDY

1. Remand without vacatur should be considered a valid remedy under the Administrative
Procedure Act’s judicial review provision, 5 U.S.C. § 706(2).
2. Absent an express legislative directive to the contrary in the text of the statute providing the
basis for review, remand without vacatur should be considered a valid remedial approach by
federal courts reviewing challenges to agency actions.
297

Anecdotal evidence indicates that occasionally the Code of Federal Regulations contains dated information. See
supra note 247. Agencies must provide official notice of rescinded regulations through issuance of a final rule in the
Federal Register, which they would normally do through the good cause exemption to the APA’s notice-andcomment rulemaking requirements. 1 C.F.R. § 21.6; see, e.g., Electronic On-Board Recorders for Hours-of-Service
Compliance; Removal of Final Rule Vacated by Court 72 Fed. Reg. 28,447 (May 14, 2012) (invoking the good
cause exemption in 5 U.S.C. § 553(b)(B)).
298
Dean Meazell suggests that agencies go so far as “to adopt uniform identifiers for responses to remands that
enable valid and reliable searches in the Unified Agenda.” Meazell, supra note 296.
299
Commercial legal databases can help connect subsequent and prior judicial history, but they may not capture
challenges to agency action that is responsive to a remand but adopted through an independent agency process (i.e.,
a legal challenge to the promulgation of a new rule may not identify an earlier challenge to the prior distinct rule).

52

RECOMMENDATIONS TO COURTS

3. On review of agency action, reviewing courts should clearly identify in their judicial
opinions whether they are vacating remanded agency actions.
4. Courts should consider whether remand without vacatur is an appropriate remedy on review
of agency action. Agency actions that are unlawful or transgress statutory standards of
review should normally be vacated by the reviewing court. Remand without vacatur may be
appropriate where:
a. The deficiencies in the agency’s decision are not severe, and hence rehabilitation of
the decision is possible;
b. The consequences of vacation would be disruptive; or
c. The interests of the prevailing parties who were prejudiced by the agency’s error(s)
would not be furthered by vacation.
5. Where courts remand but do not vacate agency actions, they should consider explaining the
basis for their remedial choice.

RECOMMENDATIONS TO AGENCIES

6. Agencies should identify or post judicial opinions vacating or remanding agency regulations
in the applicable public docket, whether on the agency website or on Regulations.gov. When
a court remands but does not vacate an agency’s rule or order, the agency should include a
statement explicitly advising that the rule or order has not been vacated and is still in effect
despite the remand.
7. When a regulation has been vacated, the promulgating agency should work with the Office of
the Federal Register to remove the vacated regulation from the Code of Federal Regulations.
8. Agencies should provide information in the Unified Agenda of Federal Regulatory and
Deregulatory Actions regarding their plans with respect to rules that are remanded without
vacatur.
9. In responding to a judicial remand without vacation of an agency action, agencies should
clearly identify the initial agency action as well as the remanding judicial opinion.

53

APPENDIX A: CASES EMPLOYING REMAND WITHOUT VACATUR,
1972-2013
Case Citation
Nat'l Ass'n of Clean Water Agencies
v. EPA, No. 11-1131 (D.C. Cir.
Aug. 20, 2013).
Black Oak Energy, LLC v. FERC,
No. 08-1386 (D.C. Cir. Aug. 6,
2013).
Mississippi v. EPA, No. 08-1200,
2013 U.S. App. LEXIS 14885 (July
23, 2013) (D.C. Cir. July 23, 2013).
Delta Air Lines, Inc. v. ExportImport Bank of the U.S., 718 F.3d
974 (D.C. Cir. 2013).
EME Homer City Generation, L.P.
v. EPA, 696 F.3d 7 (D.C. Cir.
2012), cert. granted, 133 S. Ct. 2857
(2013).
N. Air Cargo v. U.S. Postal Service,
674 F.3d 852 (D.C. Cir. 2012).

Nat'l Ass'n of Regulatory Util.
Comm'rs v. DOE, 680 F.3d 819
(D.C. Cir. 2012).
In re People's Mojahedin Org. of
Iran, 680 F.3d 832 (D.C. Cir. 2012).
Elec. Privacy Info. Ctr. v. U.S. Dep't
of Homeland Sec., 653 F.3d 1 (D.C.
Cir. 2011).
Portland Cement Ass'n v. EPA, 665
F.3d 177 (D.C. Cir. 2011).
Apache Corp. v. FERC, 627 F.3d
1220 (D.C. Cir. 2010).
Int'l Union v. MSHA, 626 F.3d 84
(D.C. Cir. 2010).
Sierra Club v. EPA, No. 03-1205
2010 U.S. App. LEXIS 12020
(Unpublished) (June 10, 2010) (D.C.
Cir. 40339).
Am. Farm Bureau Fed'n v. EPA,
559 F.3d 512 (D.C. Cir. 2009).
Catawba County v. EPA, 571 F.3d
20 (D.C. Cir. 2009).

AlliedSignal
No

Basis of
review
42 U.S.C.
7607(d).

Judge

Yes

16 U.S.C.
825l(b).

Griffith, J.

Adjudication

No

42 U.S.C.
7607(d).

Per Curiam

Rulemaking

Yes

5 U.S.C.
706(2).

Per Curiam

Adjudication

Yes

42 U.S.C.
7607(d).

Kavanaugh, J.

Rogers, J.
(dissenting)

Rulemaking

Yes

Exempt
from APA,
“in excess
of statutory
authority”
5 U.S.C.
706(2).

Silberman, J.

Sentelle, J.
(concurring)

Adjudication

Silberman, J.

Adjudication

8 U.S.C.
1189(c)(1).
5 U.S.C.
706(2).

Per Curiam

Adjudication

Ginsburg, J.

Rulemaking

42 U.S.C.
7607(d).
15 U.S.C.
717r(b).
5 U.S.C.
706(2).
42 U.S.C.
7607(d).

Per Curiam

42 U.S.C.
7607(d).
42 U.S.C.
7607(d).

No
No
Yes
No
Yes
Yes
No

Yes
No

54

Sentelle, J.

Kavanaugh, J.

Separate
Opinion

Brown, J.
(concurring)

Rulemaking or
Adjudication
Rulemaking

Rulemaking
Adjudication

Rogers, J.

Rulemaking

Per Curiam

Rulemaking

Per Curiam

Rulemaking

Per Curiam

Rulemaking

Case Citation
NRDC v. EPA, 571 F.3d 1245 (D.C.
Cir. 2009).

Southeast Ala. Med. Ctr. v.
Sebelius, 572 F.3d 912 (D.C. Cir.
2009).
New York v. EPA, No. 06-1148
with 06-1149, 2009 U.S. App.
LEXIS 20050 (unpublished) (Sept.
4, 2009) (D.C. Cir. 2009).
North Carolina v. EPA, 550 F.3d
1176 (D.C. Cir. 2008).
Williston Basin Interstate Pipeline
Co. v. FERC, 519 F.3d 497 (D.C.
Cir. 2008).
Alpharma, Inc. v. Leavitt, 460 F.3d
1 (D.C. Cir. 2006).
AT&T Inc. v. FCC, 452 F.3d 830
(D.C. Cir. 2006).
New York v. EPA, 413 F.3d 3 (D.C.
Cir. 2005), mandamus held in
abeyance, 2007 U.S. App. LEXIS
465 (D.C. Cir. Jan. 9, 2007)
(ordering EPA to file status reports
in two and nine months).
Chamber of Commerce v. SEC, 412
F.3d 133 (D.C. Cir. 2005),
remanded and vacated, 443 F.39
890 (D.C. Cir. 2006) (with retained
jurisdiction and a stay of the
mandate).
Advocates for Highway & Auto
Safety v. FMCSA, 429 F.3d 1136
(D.C. Cir. 2005).
Bluewater Network v. EPA, 370
F.3d 1 (D.C. Cir. 2004).
Ne. Md. Waste Disposal Auth. v.
EPA, 358 F.3d 936 (D.C. Cir.
2004).
Arteva Specialties S.A.R.L. v. EPA,
323 F.3d 1088 (D.C. Cir. 2003).
La. Fed. Land Bank Ass'n v. Farm
Credit Admin., 336 F.3d 1075 (D.C.
Cir. 2003).
Am. Corn Growers Ass'n v. EPA,
291 F.3d 1 (D.C. Cir. 2002).

AlliedSignal
Yes

Basis of
review
42 U.S.C.
7607(d).

Judge

Yes

5 U.S.C.
706(2).

Garland, J.

No

42 U.S.C.
7607(d).

Per Curiam

Rulemaking

No

42 U.S.C.
7607(d).
15 U.S.C.
717r(b).

Per Curiam

Rulemaking

Williams, J.

Adjudication

5 U.S.C.
706(2).
5 U.S.C.
706(2).
42 U.S.C.
7607(d).

Garland, J.

Adjudication

Tatel, J.

Adjudication

Yes

5 U.S.C.
706(2).

Ginsburg,
C.J.

Rulemaking

Yes

5 U.S.C.
706(2).

Edwards, J.

Rulemaking

No

42 U.S.C.
7607(d).
42 U.S.C.
7607(d).

Edwards, J.

Rulemaking

Per Curiam

Rulemaking

42 U.S.C.
7607(d).
5 U.S.C.
706(2).

Henderson, J.

Rulemaking

Ginsburg,
C.J.

Rulemaking

42 U.S.C.
7607(d).

Per Curiam

Yes
Yes
No
No

Yes
No
Yes
No

55

Per Curiam

Per Curiam

Separate
Opinion
Rogers, J.
(concurring
in part,
dissenting in
part)

Williams, J.
(concurring)

Garland, J.
(concurring
in part,
dissenting in
part)

Rulemaking or
Adjudication
Rulemaking

Rulemaking

Rulemaking

Rulemaking

Case Citation
U.S. Telecom Ass'n v. FBI, 276
F.3d 620 (D.C. Cir. 2002).
WorldCom, Inc. v. FCC, 288 F.3d
429 (D.C. Cir. 2002).
Sugar Cane Growers Coop. of Fla.,
Inc. v. Veneman, 289 F.3d 89 (D.C.
Cir. 2002).
Milk Train, Inc. v. Veneman, 310
F.3d 747 (D.C. Cir. 2002), reh'g en
banc denied, 2003 U.S. App. LEXIS
3736 (D.C. Cir. Feb. 27, 2003).
Sinclair Broad Group v. FCC, 284
F.3d 148 (D.C. Cir. 2002), reh'g en
banc denied, 2002 U.S. App. LEXIS
16619 (D.C. Cir. Aug. 12, 2002).
Fox Television Stations, Inc. v.
FCC, 280 F.3d 1027 (D.C. Cir.
2002).
Appalachian Power Co. v. EPA, 249
F.3d 1032 (D.C. Cir. 2001), petition
for review denied, West Virginia v.
EPA, 362 F.3d 861, 864 (D.C. Cir.
2002) (finding that “EPA satisfied
its obligation on remand to engage
in reasoned decisionmaking and
explain its choice of methodology”).
Sprint Commuc’ns Co., L.P. v.
FCC, 274 F.3d 549 (D.C. Cir.
2001).
Air Trans. Ass'n of Can. v. FAA,
276 F.3d 599 (D.C. Cir. 2001),
subsequent history at Air Transp.
Ass’n of Canada v. FCC, 323 F.3d
1093 (D.C. Cir. 2003) (vacating
regulations earlier remanded without
vacatur).
Nat'l Lime Ass'n v. EPA, 233 F.3d
625 (D.C. Cir. 2000), amended on
other grounds, 2001 U.S. App.
LEXIS 3037 (D.C. Cir. Feb. 14,
2001).
Michigan v. EPA, 213 F.3d 663
(D.C. Cir. 2000).
Am. Trucking Ass'ns v. EPA, 175
F.3d 1027 (D.C. Cir. 1999), aff'd in
part, rev'd in part, Whitman v. Am.
Trucking Ass'ns, 531 U.S. 457
(2001).
Sierra Club v. EPA, 167 F.3d 658
(D.C. Cir. 1999).

AlliedSignal
Yes

Basis of
review
Not
identified.
5 U.S.C.
706(2).
5 U.S.C.
706(2).

Judge

Yes

5 U.S.C.
706(2).

Rogers, J.

Sentelle, J.
(dissenting)

Rulemaking

No

5 U.S.C.
706(2).

Rogers, J.

Rulemaking

Yes

5 U.S.C.
706(2).

Ginsburg,
C.J.

Sentelle, J.
(concurring
in part,
dissenting in
part)

No

42 U.S.C.
7607(d).

Per Curiam

Rulemaking

Yes

5 U.S.C.
706(2).

Williams, J.

Adjudication

No

49 U.S.C.
46110(a).

Per Curiam

Rulemaking

No

42 U.S.C.
7607(d).

Tatel, and
Ginsburg, J.J.

Rulemaking

No

42 U.S.C.
7607(d).
42 U.S.C.
7607(d).

Per Curiam

42 U.S.C.
7607(d).

Williams, J.

Yes
Yes

No

No

56

Williams, J.

Separate
Opinion

Rulemaking or
Adjudication
Rulemaking

Williams, J.

Adjudication

Silberman, J.

Rulemaking

Per Curiam

Sentelle, J.
(dissenting)
Tatel, J.
(dissenting in
part)

Adjudication

Rulemaking
Rulemaking

Rulemaking

Case Citation
Radio-Television News Dirs. Ass'n
v. FCC, 184 F.3d 872 (D.C. Cir.
1999), mandamus granted, 229 F.3d
269 (D.C. Cir. 2000).
County of L.A. v. Shalala, 192 F.3d
1005 (D.C. Cir. 1999).
MCI Telecomm. Corp. v. FCC, 143
F.3d 606 (D.C. Cir. 1998).
Davis Cty Solid Waste Mgmt. &
Energy Recovery Special Serv. Dist.
v. EPA, 108 F.3d 1454 (D.C. Cir.
1997).
United Distrib. Cos. v. FERC, 88
F.3d 1105 (D.C. Cir. 1996).
Am. Medical Ass'n v. Reno, 57 F.3d
1129 (D.C. Cir. 1995).
A.L. Pharma, Inc. v. Shalala, 62
F.3d 1484 (D.C. Cir. 1995).
Checkosky v. SEC, 23 F.3d 452
(D.C. Cir. 1994), vacated, 139 F.3d
221 (D.C. Cir. 1998) (ordering the
SEC to dismiss challenged
enforcement action).
TransCanada PipeLines Ltd. v.
FERC, 24 F.3d 305 (D.C. Cir. 1994)
(orders on remand substantially
affirmed at Southeastern Mich. Gas.
Co. v. FERC, 133 F.3d 34 (D.C. Cir.
1998).
Engine Mfrs. Ass'n v. EPA, 20 F.3d
1177 (D.C. Cir. 1994).
Am. Water Works Ass'n v. EPA, 40
F.3d 1266 (D.C. Cir. 1994).
Phil. Gas Works & Lighting Co. v.
FERC, 989 F.2d 1246 (D.C. Cir.
1993).
Allied-Signal, Inc. v. USNRC, 988
F.2d 146 (D.C. Cir. 1993).
Timpinaro v. SEC, 2 F.3d 453 (D.C.
Cir. 1993), amended by 1993 U.S.
App. LEXIS 35819 (D.C. Cir. Nov.
9, 1993) (denying request to vacate
but amending so as to retain
jurisdiction and to order, sua sponte,
SEC to report in 90 days).
Fertilizer Inst. v. EPA, 935 F.2d
1303 (D.C. Cir. 1991).

AlliedSignal
Yes

Basis of
review
5 U.S.C.
706(2).

Judge

No

5 U.S.C.
706(2).
5 U.S.C.
706(2).
42 U.S.C.
7607(d).

Wald, J.

15 U.S.C.
717r(b).
5 U.S.C.
706(2).
5 U.S.C.
706(2).
5 U.S.C.
706(2).

No
Yes

No
No
Yes
No

Rogers, J.

Separate
Opinion

Rulemaking or
Adjudication
Adjudication

Per Curiam

Interpretive
rulemaking
Adjudication

Per Curiam

Rulemaking

Per Curiam

Rulemaking

Wald, J.

Rulemaking

Buckley, J.

Adjudication

Silberman, J.

Randolph, J.
(dissenting);
Reynolds, J.
(concurring
in part and
dissenting in
part)

Adjudication

No

Sentelle, J.

No

Ginsburg, J.

Rulemaking

Yes

Ginsburg, J.

Rulemaking

N/A

Silberman, J.

N/A

Williams, J.

Rulemaking

N/A

Ginsburg, J.

Rulemaking

N/A

Henderson, J.

Rulemaking

57

Randolph, J.
(dissenting)

Adjudication

Adjudication

Case Citation
Tex Tin Corp. v. EPA, 935 F.2d
1321 (D.C. Cir. 1991), subsequent
proceedings at Tex Tin Corp. v.
EPA, 992 F.2d 353 (D.C. Cir. 1993)
(finding EPA explanation issued in
response to earlier remand without
vacatur to be arbitrary and
capricious).
Int'l Union, UMWA v. FMSHA,
924 F.2d 340 (D.C. Cir. 1991).
UMWA Int'l Union v. FMSHA, 928
F.2d 1200 (D.C. Cir. 1991).
Massachusetts v. NRC, 924 F.2d
311 (D.C. Cir. 1991).
UAW v. Dole, 938 F.2d 1310 (D.C.
Cir. 1991).
Envtl. Def. v. EPA, 898 F.2d 183
(D.C. Cir. 1990).
Int'l Union, UMWA v. FMSHA,
920 F.2d 960 (D.C. Cir. 1990).
Nat'l Treasury Emp’s Union v.
Horner, 854 F.2d 490 (D.C. Cir.
1988).
Nat'l Coal. Against the Misuse of
Pesticides v. Thomas, 809 F.2d 875
(D.C. Cir. 1987) (EPA response on
remand affirmed at Nat'l Coal.
Against the Misuse of Pesticides v.
Thomas, 815 F.2d 1579 (D.C. Cir.
1987)).
Md. People's Counsel v. FERC, 768
F.2d 450 (D.C. Cir. 1985).
Am. Fed'n of Gov't Employees,
AFL-CIO v. Block, 655 F.2d 1153
(D.C. Cir. 1981).
Concerned about Trident v.
Rumsfeld, 555 F.2d 817 (D.C. Cir.
1977).
Greyhound Corp. v. ICC, 551 F.2d
414 (D.C. Cir. 1977), subsequent
proceedings at Greyhound Corp. v.
ICC, 215 U.S. App. D.C. 322, 668
F.2d 1354, 1364 (D.C. Cir. 1981)
(setting aside Interstate Commerce
Commission order issued in
response to earlier remand).
Rodway v. USDA, 514 F.2d 809
(D.C. Cir. 1975).
Kennecott Copper Corp. v. EPA,
462 F.2d 846 (D.C. Cir. 1972).

AlliedSignal
N/A

Basis of
review

Judge
Per Curiam

Separate
Opinion

Rulemaking or
Adjudication
Rulemaking

N/A

Henderson, J.

Adjudication

N/A

Edwards, J.

Adjudication

N/A

Buckley, J.

Adjudication

N/A

Williams, J.

N/A

Williams, J.

N/A

Williams, J.

Adjudication

N/A

Ginsburg, J.

Rulemaking

N/A

Starr, J.

Rulemaking

N/A

Per Curiam

Rulemaking

N/A

Tamm, J.

Rulemaking

N/A

Tamm, J.

N/A

Per Curiam

N/A

Skelly
Wright, J.
Leventhal, J.

N/A

58

Williams, J.
(concurring);
Henderson, J.
(concurring)

Leventhal, J.
(also for the
court)

Rulemaking

Rulemaking

NEPA
Adjudication

Rulemaking
Rulemaking

APPENDIX B: GENERIC AGENCY QUESTIONNAIRE

59

60