Administrative Conference of the United States
TAILORING THE SCOPE OF JUDICIAL
REMEDIES IN ADMINISTRATIVE LAW
May 4, 2018

Charles W. Tyler
Stanford Law School
Orrick, Herrington & Sutcliffe LLP

E. Donald Elliott
Yale Law School
Covington & Burling LLP
This report was prepared for the consideration of the Administrative Conference of the United States. The
opinions, views, and recommendations expressed are those of the authors and do not necessarily reflect those of
the members of the Conference or its committees, except where formal recommendations of the Conference are
cited, nor do the opinions, views, and recommendations expressed necessarily reflect the views of the institutions
or firms with which the authors are affiliated or the views of their clients.

Table of Contents
INTRODUCTION ...................................................................................... 3
I. Background And Summary Of Previous Research .......................... 4
A.

Background .................................................................................. 4

B.

Previous Research ..................................................................... 10

II.

Methodology and Participants ..................................................... 14

III. Interview Responses .................................................................... 15
A.

Before Promulgation ................................................................. 15

B.

After Promulgation .................................................................... 21

IV.

Recommendations ........................................................................ 24

A.

Before Promulgation ................................................................. 24

B.

After Promulgation .................................................................... 29

ACKNOWLEDGMENTS......................................................................... 32

2

INTRODUCTION
This study examines the techniques that federal agencies employ
or have considered employing to mitigate the costs of remedying legal
infirmities in agency rules. Our goal is to identify best practices for
agencies to mitigate the costs associated with remedying legal defects in
agency rules.
Rulemaking can be procedurally treacherous terrain for agencies as
the result of a series of challenges built into the structure of
administrative law. First, rulemaking is costly, as compiling a
rulemaking record and establishing a supporting enforcement apparatus
often requires extraordinary investments of time and money. As a
consequence of these challenges, the legal uncertainty associated with
major rulemakings is also very costly. Second, an agency seeking to
promulgate a new rule faces inherent uncertainty about whether a court
will ultimately deem the rule to be a valid exercise of its authority. This
is especially so for an agency attempting to introduce a new regulatory
program, where the legal, scientific, or economic bases for the rule have
not previously been reviewed by a court. Third, when a reviewing court
determines that an administrative rule is legally infirm, the typical,
default remedy is vacatur of the entire rule.
In addressing these challenges, the scholarly literature mostly
focuses on what courts can do to minimize the collateral costs of judicial
review of agency actions. For example, a common theme in the scholarly
literature urges federal courts to review agency actions under deferential
standards of review.1 This study, by contrast, asks what agencies can do
to reduce the costs of remedying legal defects in their rules.2
1 For representative examples, see Stephen Breyer, Judicial Review of Questions of

Law and Policy, 38 Admin. L. Rev. 363 (1986); Antonin Scalia, Judicial Deference to
Administrative Interpretations of Law, 1989 Duke L.J. 511; Elena Kagan,
Presidential Administration, 114 Harv. L. Rev. 2245 (2001); Cass Sunstein, Law and
Administration After Chevron, 90 Colum. L. Rev. 2071 (1990); and Jacob Gersen &
Adrian Vermeule, Thin Rationality Review, 114 Mich. L. Rev. 1355 (2016).
2 One exception is that this Report makes one recommendation to courts. See infra

Recommendation #8.
3

To explore this topic, we interviewed officials in various agencies’
offices of general counsel with responsibility either for providing advice
on the form and content of proposed rules or for overseeing the defense of
agency rules in litigation. We also interviewed several former officials at
the Department of Justice with those responsibilities.3
This report is divided into four Parts. Part I provides background
on the potential costs associated with remedying legal infirmities in
administrative rules and summarizes related research. Part II explains
the study’s methodology and describes the respondents interviewed. Part
III, which forms the heart of the study, reports the results of the
interviews. Finally, Part IV recommends best practices for agencies to
consider when promulgating rules and defending them in court.
I.

Background And Summary Of Previous Research
A. Background

There are a series of challenges at the heart of judicial review of
agency rules.
1.

Legal Uncertainty

Rulemaking involves inherent legal uncertainty because it is, by
statutory design, procedurally cumbersome. To promulgate a rule, an
agency typically must comply with a host of requirements derived from
the Administrative Procedure Act (APA).
Before issuing a final rule, an agency must first provide a “[g]eneral
notice of proposed rule making,” typically by publishing the proposed rule
in the Federal Register.4 And to give the aforementioned notice
3 For purposes of this

report, the term “general counsel’s office” includes agency
departments that actually go by that name and their alternatively named functional
equivalents in other agencies—e.g., the Office of the Solicitor at the Department of
Labor.
4 5 U.S.C. § 553(b).

4

requirement teeth, judicial doctrine requires the agency’s final rule to be
a “logical outgrowth” of the proposed rule.5
After publishing the notice of proposed rulemaking, the agency
must then “give interested persons an opportunity to participate in the
rule making through submission of written data, views, or arguments.”6
Then, in promulgating the final rule, the agency must provide sufficient
justification for the rule to assure a reviewing court that the rule is not
“arbitrary and capricious.”7 Under the moniker of “hard look review,” the
federal courts have construed this requirement to impose a substantial
burden of explanation on the agency. As the Supreme Court explained in
its watershed State Farm decision: “[A]n agency rule would be arbitrary
and capricious if the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.”8 One
way that an agency can fall short of this mandate is by failing to provide
a sufficient explanation of the rule’s basis and purpose, including a
response to all relevant and significant comments received during the
notice-and-comment period.9
5 Int’l Union, United Mine Workers v. Mine Safety & Health Admin., 626 F.3d 84, 94-

95 (D.C. Cir. 2010); Long Island Care at Home Ltd. v. Coke, 551 U.S. 158, 174 (2007).
6 5 U.S.C. § 553(c).
7 5 U.S.C. § 706(2)(A).

Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile
Insurance Co., 463 U.S. 29, 43 (1962). Although distinguished scholars have recently
questioned whether, on the whole, contemporary courts generally apply a searching
version of “hard look” review, see Gersen & Vermeule, supra note 1, at 1361-70, “hard
look” review continues to be a substantial source of uncertainty for an agency
contemplating the promulgation of a final rule.
8

9 See Reyblatt v. Nuclear Regulatory Comm’n, 105 F.3d 715, 722 (D.C. Cir. 1997) (“An

agency need not address every comment, but it must respond in a reasoned manner
to those that raise significant problems.”); PPL Wallingford Energy LLC v. FERC,
419 F.3d 1194, 1198 (D.C. Cir. 2005).
5

As this brief summary of the requirements of hard look review
suggests, the APA’s complex set of notice-and-comment requirements can
create substantial legal uncertainty for an agency. More specifically, it is
often difficult for an agency to predict whether a reviewing court will
conclude that it has relied on impermissible factors;10 failed to consider
an important aspect of the problem it seeks to address;11 adequately
responded to all “significant” comments;12 failed to provide notice of a rule
from which the final rule “logically” grew; etc.
In addition to the uncertainty surrounding compliance with the
APA’s notice-and-comment requirements, the APA also has numerous
exceptions, the applications of which can be difficult to predict. For
example, agencies need not comply with the APA’s notice-and-comment
requirements when promulgating rules regulating foreign affairs,
national security, and internal personnel matters;13 when promulgating
“general statements of policy” and “interpretative rules”;14 or when they
have “good cause” to believe that they are “impracticable, unnecessary,
or contrary to the public interest.”15 The application of these exceptions
is often unclear. Case law, to be sure, reduces some of the uncertainty
that these provisions engender, but in many circumstances an agency

10 See

Jerry L. Mashaw, Improving the Environment of Agency Rulemaking: An
Essay on Management, Games, and Accountability, 57 Law & Contemp. Probs. 185,
203 (1994) (noting the uncertainty that results because judges are relatively
uninformed about which of the issues raised in a challenge to a rule are important).
See Breyer, supra note 1, at 388 (noting uncertainty in whether a court will
appreciate the “problems the agency faces in setting technical standards in complex
areas”).
11

12 See Richard J. Pierce, Jr., Seven Ways To Deossify Agency Rulemaking, 47 Admin.

L. Rev. 59, 69 (1995) (“Agencies can predict neither the scope nor the intensity of the
duty [to explain rulemaking decisions] as it is ultimately applied by a reviewing
court.”).
13 See 5 U.S.C. §§ 552-556.
14 5 U.S.C. § 553(b)(3)(A).
15 5 U.S.C. § 553(b)(3)(B).

6

will not know whether a reviewing court will conclude that a
contemplated rule qualifies under one of the exceptions.16
An agency seeking to promulgate a new rule may also face
uncertainty about its statutory authority to take a particular action.
Under Chevron, a reviewing court must defer to a reasonable
interpretation of an ambiguous statute offered by an agency to whom
Congress has given interpretive authority. But it can be unclear whether
Congress has delegated interpretive authority to the agency over the
particular issue involved in the case.17 It can also be uncertain whether
a reviewing court will determine that the statute is ambiguous. As a
consequence, it will not always be clear to an agency whether it is
required, under the Prill doctrine, to explain its resolution of the
statutory ambiguity,18 or whether it will receive deference on its
interpretation of the statute at all.
2.

Harsh and Inflexible Remedies

The default judicial remedy for legal infirmity in an administrative
rule is vacatur of the entire rule.19 It is not entirely clear why this is so.

16 See Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1108 (D.C.

Cir. 1993) (“The distinction between those agency pronouncements subject to APA
notice-and-comment requirements and those that are exempt has been aptly
described as ‘enshrouded in considerable smog.’”).
17 See, e.g., Gonzales v. Oregon, 546 U.S. 243 (2006). Although a reviewing court must

defer to an agency’s interpretation of a statutory ambiguity that concerns scope of its
own statutory authority, it will not always be clear to the agency when the court will
determine that the statute is ambiguous on that issue. See City of Arlington v. FCC,
569 U.S. 290, 299-08 (2013) (requiring deference to agencies’ interpretations
regarding the scope of their own authority under Chevron).
18 Prill v. NLRB, 755 F.2d 941, 942 (D.C. Cir. 1985) (requiring an agency to identify

a statutory ambiguity before benefiting from Chevron deference); see generally
Daniel J. Hemel & Aaron Nielson, Chevron Step One-and-a-Half, 84 U. Chi. L. Rev.
757 (2017).
Stephanie J. Tatham, Executive Summary, Admin. Conference of the United
States, The Unusual Remedy of Remand Without Vacatur (2014),
19

7

Section 706 of the APA provides that a reviewing court “shall … hold
unlawful and set aside” agency actions that violate one of the APA’s
requirements.20 But nothing in the APA or the case law expressly says
that § 706 must be interpreted to mean that courts must invalidate an
entire administrative rule that contains a legal defect. And indeed, as
explained more fully below, this is not the only remedial course that
courts take.21
Instead, the default remedy in administrative law appears to be an
effect of the Chenery doctrine. According to that doctrine, a reviewing
court may not affirm an agency decision on a ground different from the
ground invoked by the agency to justify the action when first taking it.22
This principle is thought to prevent courts from substituting their
judgment for the agency’s. Similarly, the practice of vacating a defective
rule to allow an agency to correct the defect appears to stem from the
belief that it is the agency’s primary responsibility to determine how to
remedy defects in its rules and to decide whether provisions that were
not affected by the defect should go into or remain in effect in the absence
of the invalid provision. It is in this sense, as Judge Henry Friendly
colorfully put it, that administrative law adheres to remedial “purism”—
the view that “guessing by a court about what the agency might do when
apprised of … an error is an unlawful intrusion into the sanctity of
administrative process, and once such an error is detected, the case must

http://perma.cc/2WVD-ZDH2;
Nicholas
Bagley,
Remedial
Administrative Law, 117 Colum. L. Rev. 253, 257-58 (2017).

Restraint

in

20 5 U.S.C. § 706(2) (emphasis added).
21 Further, in at least one decision, the D.C. Circuit has suggested that the proper

scope of a court’s review is limited to the “part” of the rule that has been challenged.
See Catholic Soc. Serv. v. Shalala, 12 F.3d 1123, 1128 (D.C. Cir. 1994).
22 SEC v. Chenery Corp., 332 U.S. 194, 204 (1947); SEC v. Chenery Corp., 318 U.S.

80, 92-94 (1943).
8

go back so that the agency, as the sole repository of authority, can decide
it right.”23
3.

High Costs of Rulemaking

The costs of total vacatur of an administrative rule are often quite
substantial. First, total vacatur results in administrative waste, as much
of the time and energy invested in promulgating the final rule will have
been for naught. And if the agency wants to re-initiate the rulemaking,
it will have to incur much of that same expense anew.24 And as
administrative rulemaking becomes ever more complex,25 there is reason
to think that these costs will increase.
Second, where the effects of a rulemaking were net positive, total
vacatur eliminates the benefits that the final rule was meant to achieve,
at least for the time that it takes the agency to repromulgate a similar
rule.26 And the regulatory delay can be substantial.27 Moreover, the
agency may ultimately decide to abandon the rule altogether because its
“priorities may have changed, its staff may have been reassigned, or the
external groups supporting action may have dispersed.”28 Finally, all of

Henry J. Friendly, Chenery Revisited: Reflections on Reversal and Remand of
Administrative Orders, 1969 Duke L.J. 199, 223; see Bagley, supra note 19, at 25758.
23

24 Bagley, supra note 19, at 263.
25 Jennifer Nou & Edward H. Stiglitz, Regulatory Bundling, 128 Yale L.J. --

(forthcoming 2019).
26 To be sure, the net effect of a rulemaking could be negative, in which case the

costs described in the main text would actually be benefits of vacatur.
27 Connor Raso, Agency Avoidance of Rulemaking Procedures, 67 Admin. L. Rev. 101,

117 (2015); Robert J. Hume, How Courts Impact Federal Administrative Agency
Behavior 70-91 (2009); Emily Hammond Meazell, Deference and Dialogue in
Administrative Law, 111 Colum. L. Rev. 1722, 1781 (2011).
28 Bagley, supra note 19, at 263; see Jerry L. Mashaw & David L. Harfst, Regulation

and Legal Culture: The Case of Motor Vehicle Safety, 4 Yale J. on Reg. 257, 295
(1987); Richard J. Pierce, Jr., The Unintended Effects of Judicial Review of Agency
9

this expense may be for naught, as one study found that around 40% of
the time agencies made little, if any, substantive changes on remand but
merely provided additional evidence or explanation.29
B. Previous Research
One could adopt a number of strategies to redress these challenges.
One could, for example, tweak administrative law doctrines in ways that
would allow agencies more easily to determine whether their draft rules
are likely to survive a judicial challenge.30 Or one could attempt to reduce
the cost and increase the speed of agency rulemaking by attempting to
streamline agencies’ internal rulemaking procedures.31 These potential
strategies are important and worthy of study, but this report addresses
a third possibility: asking what an agency can do to encourage courts to
order more limited judicial remedies, thereby reducing the costs of fixing
legal infirmities in the agency’s rules. The balance of this section
summarizes some of the existing literature on this topic.
1.

Severability

One strategy that an agency can take to convince a reviewing court
to order a remedy that is less onerous than total vacatur of a rule is to
include a severability clause in the rule. In 2015, the authors published
an article in the Yale Law Journal on this topic.32 That article explained
that, as a general matter, agencies rarely include severability clauses in
Rules: How Federal Courts Have Contributed to the Electricity Crisis of the 1990s,
43 Admin. L. Rev. 7 (1991).
29 Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study

of Federal Administrative Law, 1990 Duke L.J. 984, 1050.
See, e.g., Gersen & Vermeule, supra note 1, at 1370-1405; Adrian Vermeule,
Deference and Due Process, 129 Harv. L. Rev. 1890 (2016).
30

See, e.g., Jeffrey S. Lubbers, Better Regulations: The National Performance
Review’s Regulatory Reform Recommendations, 43 Duke L.J. 1165, 1173 (1994).
31

32 See generally Charles W. Tyler & E. Donald Elliott, Administrative Severability

Clauses, 124 Yale L.J. 2286 (2015).
10

their rules.33 At the time of that article’s publication, most agencies had
never included a severability clause in one of their rules.34 And of the
agencies that had, only a handful had included a severability clause in
more than 2% of their rules promulgated between 2000 and 2014.35
The article concluded that agencies’ infrequent use of severability
clauses is due to a feedback loop between the courts and the agencies. On
one hand, judicial doctrine on severability, especially on severability
clauses in administrative rules, is thin. The Supreme Court has never
addressed the issue.36 Several lower courts, however, have given
substantial weight to agencies’ expressions of intent through severability
clauses.37 However, because courts have not provided much guidance on
the weight due to administrative severability clauses, some agencies
appear to have concluded that it is not worthwhile to include a
severability clause in final rules. On the other hand, because agencies
rarely include severability clauses in their rules, courts have not had
many opportunities to develop robust judicial doctrine on the subject.
33 Id. at 2319.
34 Id.
35 Id. at 2349-52; see id. at 2319 (explaining methodology).
36 A prominent rule with a severability clause was the EPA’s so-called Clean Power

Plan. See Environmental Protection Agency: Carbon Pollution Emission Guidelines
for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. at
64,662 (October 23, 2015). In February 2016, the Supreme Court stayed the
enforcement of the Clean Power Plan pending a decision on the merits. Chamber of
Commerce v. EPA, 136 S. Ct. 999 (2016). The Court did not address the severability
clause and, given the rule’s proposed repeal, the Court is unlikely to do so. See Exec.
Order No. 13,783, 82 Fed. Reg. 16093 (Mar. 28, 2017) (proposed Executive Order to
repeal the Clean Power Plan).
37 See, e.g., High Country Conservation Advocates v. U.S. Forest Serv., No. 13-CV-

01723-RBJ, 2014 WL 4470427, at *4 (D. Colo. Sept. 11, 2014) (“I conclude that the
severability clause creates a presumption that the North Fork Exception is
severable ….”); Consumer Fin. Prot. Bureau v. The Mortg. Law Grp., LLP, 182 F.
Supp. 3d 890, 894–95 (W.D. Wis. 2016) (deferring to severability clause on issue of
whether the agency intended for the remainder of the rule to stay in effect); see also
Tyler & Elliott, supra note 32, at 2312-18.
11

The article proposed two solutions to what the authors believed was
an underuse of severability clauses in administrative rules. First, the
article urged administrative agencies to consider including severability
clauses in rules that they have determined are severable. Doing so is
often fairly inexpensive for the agency, it would notify the public of the
agency’s position on the issue and would often bolster the agency’s
position on severability in litigation.38 Second, the article urged courts to
adopt a deferential framework for reviewing administrative severability
clauses—i.e., a framework that typically would leave the lawful aspects
of administrative rules in place when the regulatory text or the rule’s
statement of basis and purpose includes a severability clause.39
2.

Prejudicial Error

Another strategy for tailoring the scope of administrative remedies
is to persuade a reviewing court that a legal infirmity in an
administrative rule is harmless. A recent article by Professor Nicholas
Bagley contends that the APA’s “prejudicial error” provision40—located
in the same provision that specifies the grounds for judicial review of
agency actions—has fallen into virtual desuetude.41 He criticizes this
development, arguing that courts should more frequently find that errors
in administrative rules are harmless.42
38 Id. at 2318-23, 2344-48.
39 Id. at 2331-47.
40 5 U.S.C. § 706 (“due account shall be taken of the rule of prejudicial error.”)
41 Bagley, supra note 19, at 262, 265; see United States v. Johnson, 632 F.3d 912, 931

(5th Cir. 2011) (concerns that an agency may flout procedural requirements “support
the limited role of the harmless error doctrine in administrative law”); Allina Health
Servs. v. Sebelius, 746 F.3d 1102, 1109 (D.C. Cir. 2014) (“We have not been hospitable
to government claims of harmless error in cases in which the government violated
§ 553 of the APA by failing to provide notice.”).
Bagley finds case law support—albeit thin—in the Supreme Court’s recent
decisions in National Association of Home Builders v. Defenders of Wildlife, 551 U.S.
644, 659 (2007), Shinseki v. Sanders, 556 U.S. 396, 406-11 (2009), and Federal
Express Corp. v. Mineta, 373 F.3d 112, 120 (D.C. Cir. 2004).
42

12

It is often the case, Bagley observes, that the legal infirmities in
agency rules have had no detrimental effect on the party challenging the
rule. Suppose, for example, that the agency consulted a party extensively
before promulgating a final rule but that the party later challenges the
rule in court on the ground that the agency did not comply with the APA’s
notice requirements. Even if the challenger is right that the agency failed
to comply with the APA, the error was arguably harmless, at least with
respect to the challenger.43 After all, the agency consulted with the party
on the substance of the rule before the rule was promulgated. In these
circumstances, invalidating an otherwise-valid rule on the ground that
this particular challenger was not given “notice” would arguably be a
disproportionate remedy for the violation.44
3.

Remand Without Vacatur

Remand without vacatur—that is, judicial remand of an agency
action that permits the action to remain in place while the agency reviews
its defects—is another, fairly modest remedial option available to a court
reviewing an administrative rule. Under D.C. Circuit law, a court may
order the remedy (a) where a rule was inadequately explained and where
further explanation could potentially cure that defect; or (b)
where immediate vacatur would cause great disruption to a legitimate
regulatory program.45
The legality of this remedy has been the subject of some controversy
in the D.C. Circuit. As mentioned above, the APA provides that reviewing
43 Bagley, supra note 19, at 266.

Ronald M. Levin, Scope-of-Review Doctrine Restated: An Administrative Law
Section Report, 38 Admin. L. Rev. 239, 284 (1986); Ronald M. Levin, “Vacation” at
Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke
L.J. 291, 312 (2003) (“This clause, a harmless error principle, necessarily implies that
the ‘shall … set aside’ language found earlier in the provision must mean ‘shall
generally,’ not ‘shall always.’” (quoting Administrative Procedure Act, 5 U.S.C. § 706
(2000)).
44

45 Tatham, supra note 19, at 1; Remand Without Vacatur, ACUS Recommendation

2013-6 (Adopted December 5, 2013).
13

courts “shall … hold unlawful and set aside” agency actions that violate
one of the APA’s requirements.46 Does the APA’s imperative that courts
shall “set aside” agency action mean that a reviewing court must vacate
defective rules? Some members of the D.C. Circuit have thought so.47 But
that position has always been a minority view. For its part, the Supreme
Court has repeatedly declined to address the issue, despite numerous
opportunities to do so.48
Several scholars have offered commentary on remand without
vacatur—some of it positive and some of it negative.49 And ACUS has
sponsored a study on the remedy and issued a recommendation offering
various suggestions to the courts and agencies.50
II.

Methodology and Participants

In September 2015, ACUS first organized a roundtable discussion
on the topic of severability clauses in administrative rules. That
discussion made apparent the value in further study of administrative
techniques for reducing the costs of remedying legal infirmities in rules.
ACUS then commissioned this study and report in July 2017.
The authors asked ACUS members and affiliates at the following
agencies to put the authors in touch with officials with knowledge and
46 5 U.S.C. § 706(2) (emphasis added).
47 See, e.g., Milk Train, Inc. v. Veneman, 310 F.3d 747, 758 (D.C. Cir. 2002) (Sentelle,

J., dissenting) (“Although I greatly respect the majority’s attempt to save a wellintended relief program from possibly inefficient further proceedings, I do not think
we can lawfully do so.”); Checkosky v. SEC, 23 F.3d 452, 490-91 (D.C. Cir. 2004)
(Randolph, J., dissenting).
48 Tatham, supra note 19, at 8-9 (identifying missed opportunities).
49 Compare Levin, “Vacation”, supra note 44; Kristina Daugirdas, Note, Evaluating

Remand Without Vacatur: A New Judicial Remedy for Defective Agency
Rulemakings, 80 N.Y.U. L. Rev. 278 (2005) with Daniel B. Rodriguez, Of Gift Horses
and Great Expectations: Remands Without Vacatur in Administrative Law, 36 Ariz.
St. L.J. 599 (2004).
50 Tatham, supra note 19.

14

expertise about the subject of the study: the Environmental Protection
Agency, the Department of Energy, the Department of Labor, the Federal
Trade Commission, the Federal Drug Administration, the Securities
Exchange Commission, the Federal Energy Regulatory Commission, the
Department of Justice, the Department of Homeland Security, and the
Consumer Financial Protection Bureau.51 With the exception of the
officials from the Justice Department, each respondent was either a
current or former official in the functional equivalent of the agency’s
general counsel’s office.
Over several months, the authors conducted phone interviews of
agency staff (current and former). Before conducting some of the
interviews, the authors distributed to the respondents a list of potential
subtopics that would potentially be explored.
All respondents preferred to share their views anonymously and
without attribution to their particular agency. The views expressed
during the interviews thus reflect a mix of personal and institutional
opinions. In some cases, a single agency official was interviewed; in
others, multiple officials participated in the study.
III. Interview Responses
During the interviews, agency officials were asked about the
techniques they use or have considered using for attempting to minimize
the costs of remedying actual or potential legal defects in agency rules.
This Part explains the responses given during interviews. Section A
addresses techniques that agencies have employed or have considered
employing before promulgating a final rule. Section B addresses
techniques agencies can employ after promulgating a final rule.
A. Before Promulgation
Respondents were asked what steps their agencies have taken or
have considered taking to limit the extent to which legal defects in rules
Participants from the Department of Homeland Security and the Consumer
Financial Protection Bureau respectfully declined to participate in the study.
51

15

will disrupt otherwise valid regulations. In other words, what steps can
agencies take to avoid legal defects in parts of a regulatory program from
tainting other aspects of the program?
1.

Severability clauses

Respondents from four agencies indicated that their agencies had
recently included a severability clause in at least one of their rules.52 One
official reported that his or her agency’s general practice is to consider
including a “blanket” severability clause in each rule that the agency
promulgates—i.e., a clause providing that all provisions of a rule are
intended to be severable.
The respondents who indicated that their agencies had used a
severability clause in at least one of their recent rules were asked for
their assessment of the additional costs associated with including a
severability clause in a rule. Each official opined that the marginal
drafting costs of including a severability clause in a rule were not
appreciably high.
The respondents disagreed, however, about whether including a
severability clause in a rule appreciably increased an agency’s total
regulation costs because they disagreed about whether including such a
claim increased the chance that a rule would receive substantial scrutiny
in court. On one hand, one official observed that his or her agency had
regularly included severability clauses in some of its rules since the 1980s
and had not found that it weakened the agency’s position on the merits
in litigation. On the other hand, two officials—one from an agency that
has included a severability clause in a recent rule and another from an
agency that has not—opined that a severability clause could signal
52 These reports were consistent with the authors’ 2015 study on severability clauses,

see Tyler & Elliott, supra note 32, at 2349-52, and with the authors’ review of the
Federal Register in preparing this report. Officials from several other agencies
reported that they could not recall an instance in which the agency had included a
severability clause in one of its rules. Although these reports were also consistent
with the authors’ 2015 study, the authors’ recent review of the Federal Register
identified at least one severability clause that had not been identified by the
respondents.
16

weakness to a reviewing court. One of these officials also worried that a
severability clause would lock the agency in to a position on severability
that it may later realize, upon further reflection, it should not have
adopted.
Officials at two agencies also cautioned that an agency’s propensity
for including severability clauses in its rules should depend on its subject
matter and rulemaking processes. One official noted that the rules
promulgated by the official’s agency tend to be relatively atomistic, and
therefore more easily divided into severable parts, as compared to the
rules of some other agencies. Those comments were echoed by other
officials, who warned that the practice of including blanket severability
clauses for each rule that the agency promulgates would likely not be
appropriate for an agency attempting to promulgate a rule for which the
individual parts are highly interdependent.
2.

Alternative Ways of Achieving Severability

Respondents were also asked about other techniques for attempting
to achieve the same benefits as a severability clause without expressly
including such a clause in the rule.
a. Respondents were asked whether their agencies had considered
promulgating aspects of an otherwise unified regulatory program
through multiple, discrete rules, rather than a single rule, in order to
avoid the risk of an unlawful aspect of the program tainting the otherwise
lawful aspects of the program. Officials from two agencies each reported
that their agencies had done this, at least on one occasion, to mitigate the
risk of legal taint. These officials cautioned, however, that dividing a rule
into multiple segments can create legal risks for the agency’s rule that
would not otherwise exist. For example, two officials suggested that
simultaneously promulgating multiple rules that cross-reference one
another may increase the probability that either rule will be challenged
and that a reviewing court will be skeptical of the segmented-rulemaking
process. Deviations from the ordinary course, one might think, are
circumstantial evidence of legal uncertainty.

17

Along related lines, two officials warned that, in some
circumstances, segmenting rules may have the effect of weakening the
agency’s overall case for the regulatory program. If, for example, the
agency has compiled a complex economic analysis to support the program
as a whole, that analysis may not support any of the segmented aspects
of the program as well as it would support a single rule implementing the
entire program. Thus, the agency may fear that segmenting the rule into
multiple rules would make the program vulnerable to the accusation that
the rules comprising it are arbitrary and capricious.
Relatedly, an official from another agency suggested that, if the
agency’s authority to take a particular action is uncertain, agency
officials may consider testing the legality of the action by promulgating a
narrower, less costly rule that will tee up the legal question that the
agency needs resolved, thereby avoiding the cost of a more costly
regulatory program in the event that a reviewing court disagrees with
the agency’s legal theory.53 Officials from that agency, however, hastened
to add that it was rare—though not unprecedented—for the agency to
issue rules where its authority to regulate was not well established.
By contrast, officials from two agencies reported that staff at their
agencies would be reluctant to consider the possibility of segmenting a
unified regulatory program into multiple rules due to competing
demands for the agency heads’ time and attention.54 Similarly, officials
from two agencies remarked that dividing a rule into discrete parts would
require additional agency resources and that their agencies’ regulatory

The authors note that, in appropriate settings, an agency can assert in the
preamble of the rule that it has promulgated a discrete portion of a larger regulatory
program as part of a larger plan to take “one step at a time.” See Ctr. for Biological
Diversity v. Envtl. Prot. Agency, 722 F.3d 401, 405-10 (D.C. Cir. 2013) (permitting
agencies to take discrete steps toward a larger congressionally mandated goal as long
as the agency demonstrates that it is cognizant of Congress’ desired outcome and is
taking steps to fulfill it).
53

54 For the purposes of this report, the term “agency head” includes an agency’s most

senior official(s) whether a single agency head, such as the EPA Administrator, or a
multimember commission or board, such as the FCC Commissioners.
18

timelines are often too short to consider this technique as a viable
alternative to a severability clause.
b. Respondents were also asked whether their agencies had
promulgated rules with fallback provisions—i.e., provisions that would
take effect only in the event that a court were to vacate other provisions
of the rule. For example, suppose an agency is contemplating two
different standards for the size of fish that fishermen may keep—one
based entirely on data about effects on the fish population and another
based on that data as well as data about the agency’s cost of
implementing various standards. If the agency prefers the second
standard, but is uncertain whether it may take the cost of
implementation into account, the agency could promulgate the second
standard with a fallback provision stating that the former standard shall
take effect if a court determines that the latter standard is unlawful.55
No respondent could recall or was willing to discuss a time that the
agency had used a fallback provision in one of its rules.
c. Respondents were also asked whether their agencies have
attempted to structure their rules to reflect their views about the
severability of various provisions (even if not by including an express
severability clause). Officials from three agencies reported that their
agencies, when appropriate, will structure the regulatory text of rules so
that each provision is independent of others, bolstering the agency’s
intended position in litigation that if one provision is held unlawful, the
others should remain in effect. Attorneys from these agencies routinely
search for places to clarify which aspects of the regulatory text are
interdependent and which aspects of the text are independent. They also
search for places to clarify where aspects of the regulatory text are
supported by multiple, independently sufficient grounds. These officials
also indicated that attorneys in charge of reviewing draft regulatory text
55 Although this issue was not discussed with EPA officials, it occurred to the authors

that this is arguably the structure of the Clean Power Plan. That rule requires states
to meet emissions targets based on three “building blocks,” but also provides that if a
court determines that the agency was not permitted to base standards on one of the
buildings blocks, that the standard shall be based on the other two. See 40 C.F.R.
Part 60.
19

will sometimes advise officials in charge of drafting the text to subdivide
provisions into more discrete chapters, sections, and parts, in order to
bolster the agency’s position to a reviewing court that certain provisions
were intended to work independently, or conversely, to lump provisions
together to bolster the agency’s case that the provisions were intended to
work together.
3.

Stakeholder input

Respondents were also asked whether their agencies seek input
from stakeholders concerning any of the issues discussed above. All
agencies reported that they generally seek input from stakeholders
regarding the expected impact of proposed rules but that they do not
specifically seek input on procedural matters, such as severability
clauses. One official, however, opined that stakeholder input may be
particularly valuable on procedural issues. Some stakeholders will have
a strong interest in a proposed regulation and will be willing to invest
heavily into researching the interaction of various provisions, thus
allowing those stakeholders to provide the agency with useful
information that the agency might not otherwise have.
4.

Litigation Risk Assessments

Respondents were asked about the content of litigation risk
assessments prepared by their agencies’ general counsel’s offices.
Officials from five agencies opined that litigation risk assessments were
most useful when incorporated into an iterative drafting process between
policy experts, legal compliance experts, and those responsible for
drafting regulatory text. According to these officials, the development of
regulatory text at their agencies is a collaborative process in which policy
experts and compliance attorneys work together to balance the perceived
costs and benefits of various regulatory options, including the potential
risk of a judicial ruling invalidating aspects of the regulatory program.
Officials from three agencies emphasized that the collaborative nature of
the rule drafting process is aided by the fact that lawyers are brought in
during the earliest stages of rule development. These officials also
emphasized that, during the drafting process, officials have robust
discussions about the risks of an adverse judicial ruling to a particular
20

program, as well as risks to other programs that may be vulnerable to
same sort of legal challenge, but which have thus far not been challenged.
Several agencies’ officials also mentioned that, on occasion, their
agencies had robust communication with attorneys at the Department of
Justice with responsibility for ultimately defending a proposed rule in
litigation. However, the extent to which the Department of Justice was
involved in the development of agency rules depended heavily on the
nature of the rulemaking and the relationship between agency staff and
the DOJ attorneys responsible for defending the agency’s rules.
B. After Promulgation
Respondents were also asked to comment on techniques that their
agencies have used or have considered using after promulgating a new
final rule to mitigate the costs of remedying legally infirm rules.
1.

Compromise

Officials from several agencies emphasized the importance of
proactively engaging with regulated entities to reach compromises,
where possible. In this regard, one agency strategy is to seek a settlement
in litigation that is consistent with the agency’s regulatory goals.
Proactive settlement negotiations can be useful in allowing agencies to
promote their regulatory objectives without substantial interference from
the courts. Another strategy mentioned was to seek to understand the
compliance difficulties that individual regulated entities face and to offer
delayed implementation of new rules as to those entities for a reasonable
amount of time.
2.

Briefing Remedies

Respondents were also asked whether the government had
requested specific remedies in briefs defending their rules as a means of
limiting the costs flowing from an adverse judicial ruling.56 In particular,
56 Several scholars have noted that the issue of remedies “receive[s] little attention in

briefing.” Bagley, supra note 19, at 262; Daugirdas, supra note 49, at 310. In one
sense, this is strange. If a more limited remedy would benefit the agency—and in
21

respondents were asked whether the government had (a) argued that an
invalid provision of a rule was severable; (b) argued that the appropriate
remedy for an invalid rule is remand without vacatur; (c) argued that a
rule’s legal infirmity was harmless error; or (d) sought a voluntary
remand of a rule to avoid a damaging precedential ruling.57
a. Officials from two agencies reported that their agencies had at
least on one occasion argued in a brief that an agency rule was severable.
One of those officials said that the issue of severability commonly arises
in moot courts in preparation for oral argument, but that it is much less
likely to appear as an argument in the agency’s briefs.58 That official, as
well as officials from another agency, opined that their agencies rarely
affirmatively argue remedies in their briefs because the agencies’
primary position is typically that their actions were lawful—i.e., that the
agencies are right on the merits—and that an argument about remedies
would weaken and distract from that position.
b. Officials from two agencies reported that the government had
sought remand without vacatur in some cases challenging the agency’s
rules, while officials from another agency reported that they were
unaware of an instance in which the government had made that
argument in one of their cases. An official from a fourth agency remarked
that he or she thought that the government should seek remand without
vacatur more often than it does. The official speculated that litigators are
hesitant to ask for remand without vacatur because they worry that
many cases, it clearly would—then why don’t agencies nearly always ask for it? One
reason may be that agencies believe that arguments about remedy will fall on
unreceptive ears. But, as explained in the main text, a more important reason may
be related to litigation strategy—namely, an agency might believe that briefing
remedies would weaken its position on the merits.
57 We use

the locution “the government” rather than “the agency” because some
agencies studied here have independent authority to defend their rules in litigation,
while other agencies are usually (if not always) represented by the Department of
Justice.
58 That lawyers who defend agency rules in court commonly prepare answers to

remedy-related questions suggests that the issue arises with some frequency at oral
argument.
22

doing so weakens the government’s position on the merits. In other
words, litigators may worry that asking for remand without vacatur
signals to the court that the agency lacks confidence in its position on the
merits. Officials from two agencies opined that the litigation-strategy
concern was easily overstated. Any marginal risk associated with
requesting a more limited remedy, these officials said, could likely be
mitigated by making clear that the agency’s primary position was that
the rule is lawful and that the agency was only briefing the issue of
remedy in the alternative.
c. Respondents were asked whether they were aware of an instance
in which the government had argued that a flaw in an administrative
rule was harmless error. Several officials said yes; most said no. One
official recalled an instance in which agency had argued that failure to
conduct notice and comment was harmless error because the parties
subject to the rule were made sufficiently aware of the rule’s content
before the rule was promulgated.
d. Respondents were asked whether their agencies had ever sought
a voluntary remand of a rule to avoid an adverse judicial ruling. Officials
from one agency indicated that the agency has on occasion requested a
voluntary remand of a rule in order to avoid the possibility of an adverse
circuit court holding that the agency generally had no authority to take
the kind of action in question.
Finally, on the issue of briefing remedies, a former official from one
agency indicated that, in his or her view, asking for particular remedies
when a rule has never been enforced would often be a tall order because
it would be more difficult to show a reviewing court that large-scale
reliance interests had been built up around the rule. Along similar lines,
the same official opined that a court is much less likely to grant a more
limited remedy sought by the agency if there is potentially a substantive
problem with a rule—e.g., that the rule is ultra vires—than if the defects
in the rule are entirely procedural—e.g., failure to provide adequate
notice.

23

IV.

Recommendations

This Part suggests practices that agencies should consider when
drafting rules and defending them in litigation. One theme that emerged
from our interviews with agency officials is that the techniques described
in Part III are highly context-dependent. Each agency has its own unique
mission, its own internal processes and structures, its own staff (with
their various competencies and areas of expertise), its own relationship
to other agencies and to the President and Congress, and its own budget.
Each of those characteristics can affect whether the techniques discussed
above are advisable in any particular situation. Accordingly, it would be
unwise to recommend that all agencies should adopt a particular practice
in all circumstances. Instead, this Part proposes a list of practices that
agency staff should consider when promulgating new, final rules that
involve an appreciable degree of legal uncertainty.
A. Before Promulgation
Recommendation #1: Where the agency has determined that the rule’s
provisions would function independently, consider including a
severability clause in the text of a rule and explaining the severability
clause in the rule’s statements of basis and purpose.
Severing the invalid provisions of a rule from the valid provisions
(and leaving the valid ones in effect) has the potential to avoid many of
the costs of total vacatur. While the public may lose the benefits, such as
they are, of legally infirm provisions, and while the agency may incur the
expense of repromulgating those provisions, the unchallenged provisions
may remain good law and continue to benefit the public and the agency.
Including a severability clause in the text of a final rule (that an
agency would prefer to be severable) may increase the chance that a
reviewing court will determine that the infirm portions of a rule actually
are severable. In the absence of a severability clause, a reviewing court
may be concerned that severing the remaining aspects of a rule would
put the court in a position of endorsing a rule that the agency had not
promulgated. Severability clauses can help alleviate this problem, by

24

assuring the reviewing court that the agency intended the remainder of
the rule to stay in effect, even in the absence of the invalid provision.59
As a best practice, the agency should include the severability clause
in the text of a proposed rule, to allow the public and regulated industries
an opportunity to comment on the proposal. And the agency should
include an explanation of the severability clause in the rule’s statement
of basis and purpose to ensure a reviewing court that the agency believes
that the justifications for the rule also apply to the aspects of the rule
that survive a judicial challenge.60
As explained above, some agency officials have the sense that
including a severability clause in a final rule makes the rule more
vulnerable to judicial challenge. That may be true in some cases, though
we are skeptical that it is true as a general matter. Some areas of
regulation are sufficiently controversial that any substantial rule in that
area is destined to reach the courts, whether or not it contains a
severability clause. And it is in these rules—those that are most likely to
be challenged—where the benefits of severability clauses are at their
apex.
To be clear, as the phrasing of this recommendation suggests, the
authors do not recommend that agencies include severability clauses in
every rule. Severability clauses are not advisable in all circumstances. A
severability clause would be inappropriate where the rule’s efficacy
depends on the interconnectedness of its provisions. It would also be

59 See Tyler & Elliott, supra note 32, at 2298-99.
60 The D.C. Circuit has, on occasion, held an entire rule unlawful where it had not

been assured that the rule’s statement of basis and purpose supported the
remainder of the rule in the absence of a provision that had been targeted in a
judicial challenge. See, e.g., MD/DC/DE Broadcasters v. FCC, 253 F.3d 732 (D.C.
Cir. 2001); ACA Int’l v. FCC, 885 F.3d 687, 708-09 (D.C. Cir. 2018).
25

inappropriate where the agency simply does not know its position on
severability at the time it promulgates the final rule.61
Recommendation #2: When contemplating a new regulatory program,
whose legality is not well established, consider rolling the program out
through multiple rules, rather than a single rule.
Another technique for preventing potential legal defects in one
aspect of a regulation from tainting the other aspects of the regulation is
to promulgate the regulation through multiple, discrete rules, rather
than a single rule. This technique will guarantee that the various aspects
of a regulation will be legally independent.
Promulgating multiple rules, however, can have drawbacks.
Several respondents indicated that, in some instances, the
administrative record may provide stronger support for a single rule than
it does for either of two separately promulgated rules. Other officials
opined that dividing regulations into separate rules would be too costly,
time-consuming, and taxing of the agency heads’ time to be seriously
considered by their agencies. In addition, dividing regulations into
multiple rules is a fairly heavy-handed technique that can achieve only
some of the benefits of a severability clause. A severability clause can
specify any number of relationships between regulatory provisions—e.g.,
that all of a rule’s sections are severable; that a particular provision is
severable; that particular provisions are severable from some provisions,
but not from others; etc. By contrast, dividing a regulation into multiple
rules only specifies one type of relationship—namely, that the
regulations promulgated in one rule are independent from the
regulations promulgated in the other rule.
Still, some agencies have, on occasion, found separating regulations
into multiple rules to be a useful way of expressing to a reviewing court
that the agency regards the regulations as independent. Agencies should
therefore at least consider this as one of the options, on a menu of
61 As explained above, some agencies indicated that they preferred to express their

opinions on severability after litigation had been initiated, rather than during the
process of promulgating a final rule.
26

available options, for attempting to minimize the costs of remedying
potential legal defects in its rules.
Recommendation #3: Organize rules in ways that clearly reflect the
independence of or interdependence between their provisions.
Several respondents emphasized that their offices of general
counsel attempt to ensure that a rule’s text and structure reflect the
logical and practical relationships between a rule’s provisions. For
example, it is a best practice for an agency to make clear when it intends
for features of a rule to function independently by dividing those features
into separate parts and sections and indicating in the rule’s text that
those features are supported by independent justifications and evidence.
Doing so can strengthen the agency’s argument to a reviewing court that
it intended the rule to be severable, even in the absence of a severability
clause.
Recommendation #4: Consider including “fallback” provisions in a new
rule, where the agency’s preferred course is legally uncertain and where
there is a clear second-best alternative.
When the legality of an agency’s preferred regulatory course is not
well established, the agency may know what its preferred second-best
alternative would be, in the event that a reviewing court determines that
its preferred course is unlawful. The agency, for example, may prefer to
impose a standard—call it Standard X—that is based on extant scientific
data and the agency’s own costs of implementation. And the agency may
also know that, if the agency is not permitted to take its own costs of
implementation into account, that it would prefer a slightly more
stringent standard—call it Standard Y—that is based only on the
scientific data and not on the costs of implementation. In such
circumstances, the agency should consider taking both Standard X and
Standard Y through the notice-and-comment process and promulgating
a rule that imposes Standard X and that specifies that Standard Y will
take effect in the event that a reviewing court holds Standard X to be

27

unlawful.62 This technique, however, is only advisable where compliance
with the agency’s fallback position is consistent with the compliance with
its preferred position. If its fallback position and its preferred position
require two different types of conduct, then the regulated entities who
have complied with the agency’s preferred position must be given time to
adapt to its fallback position, in the event that a reviewing court holds
its preferred position unlawful.
Recommendation #5: When contemplating the promulgation of a new
regulatory program, the legality of which is uncertain, consider
promulgating a smaller, less costly rule as a test case.
As discussed above, agencies sometimes wish to regulate in areas
where their authority to do so is not well established. Such rulemakings
can be associated with high administrative costs, as an agency may have
to invest heavily in new research and a new enforcement apparatus. The
risk that a reviewing court will not adopt the agency’s position on its
regulatory authority can therefore be very costly. Officials at one agency
mentioned that one way to mitigate this risk is to promulgate a narrower,
less costly rule as a form of “test case”—i.e., a rule that will allow the
agency to test its legal theory in court without incurring the large costs
of a new regulatory program.
To be sure, in many circumstances, this technique will not be
advisable. The time it takes for a “test case” to be promulgated and to
reach final judgment in court may be too long for an agency to wait before
rolling out its intended program. Still, this is another option that
agencies have in their toolbox when determining how best to minimize
the costs of remedying potentially defective rules.
Recommendation #6: Consider integrating litigation risk assessments
early in the process of drafting regulatory text and include litigation risk
as part of the process of choosing between various regulatory options.

62 As noted above (note 55), this is arguably the structure of the EPA’s Clean Power

Plan.
28

Most respondents indicated that the formulation of new regulatory
policy worked best when the process of drafting a rule’s regulatory text
was viewed as a close collaboration between policy experts, compliance
experts, litigators, and rule drafters. They reported that iterative (rather
than linear) rule drafting processes permit the agency to more finely
balance the benefits of marginal increases in regulatory impact against
the marginal costs of additional litigation risk. One reason why that
arrangement works well is that it allows an agency to take the risk of
litigation into account when determining the best regulatory course.
Some officials reported that the lawyers responsible for defending
a rule in court were sometimes consulted only at the late stages of the
rule-drafting process and even, on occasion, only after a final rule had
been promulgated and litigation had begun. In our view, these agencies
should collaborate with experienced litigators early in the rule-drafting
process, at least when promulgating high-impact rules that are likely to
be challenged in litigation.
B. After Promulgation
Recommendation #7: Where the agency has a firm view about the
appropriate remedy for a defective rule, consider proactively seeking that
remedy in litigation briefs.
With regard to remedies, one lesson is that agencies might not receive
what they don’t request. The authors believe that one contributing cause
of total vacatur’s status as a default remedy in administrative law is that
agencies request more limited remedies less frequently than they should.
We therefore recommend that, where appropriate, agencies affirmatively
argue to courts their positions on the appropriate remedy for a defect in
an administrative rule—e.g., that the provisions of a rule should be

29

severed; that an infirmity was harmless error; or that the court should
remand the rule without vacating it.
Recommendation #8: The federal courts should develop briefing
policies and practices that would encourage agencies to submit briefing
on remedies.
Government lawyers defending agency rules in court are often faced
with a strategic dilemma. On one hand, briefing remedies can be seen as
a sign of weakness in the agency’s position on the merits. On the other
hand, an agency will often have a preference for a more limited remedy
that it would prefer to explain to a reviewing court, if it knew that the
court was going to find its rule unlawful. Due to streamlined briefing
schedules, however, an agency that chooses not to brief remedies in its
brief on the merits will often never be given a second opportunity to
explain to the court why it should not vacate a rule in its entirety.
Courts should recognize this dilemma and consider taking steps to
ameliorate the distortions it causes in the briefs that the courts receive.
One way to do this would be to allow the parties to submit supplemental
briefing in cases where the court believes it will likely hold an
administrative rule unlawful. While this proposal would likely improve
the quality of briefs submitted by the government on remedies, it has the
drawback of making the time to decision slower.
Another way of ameliorating the dilemma is to provide in the court’s
briefing order that agencies are to submit any plausible arguments on
remedies in their principal briefs on the merits. The D.C. Circuit’s Rules
already address a similar dilemma facing rule challengers. Parties
challenging administrative rules often face plausible arguments that
they lack standing. In the absence of any rule to the contrary, they may
prefer for strategic reasons not to address standing in their opening
briefs, even when they know that standing will feature prominently in
the parties’ arguments to the D.C. Circuit. The Circuit Rules ameliorate
this issue by directing appellants or petitioners in cases involving direct
review of administrative actions to include in their opening briefs

30

“arguments and evidence establishing the claim of standing.”63 Because
the Circuit Rules require petitioners to address standing in their opening
briefs, no one infers from that fact that they have made standing
arguments that they are uncertain about their position on standing.
Similarly, courts could ameliorate the strategic dilemma that agencies
face by requiring the parties to brief remedies whenever there are
plausible arguments that total vacatur would be inappropriate in the
event that the reviewing court holds the agency’s rule unlawful.

63 D.C. Cir. Rule 28(a)(7) (“Standing. In cases involving direct review in this court of

administrative actions, the brief of the appellant or petitioner must set forth the basis
for the claim of standing. This section, entitled ‘Standing,’ must follow the summary
of argument and immediately precede the argument. When the appellant’s or
petitioner’s standing is not apparent from the administrative record, the brief must
include arguments and evidence establishing the claim of standing. See Sierra Club
v. EPA, 292 F.3d 895, 900-01 (D.C. Cir. 2002).”).
31

ACKNOWLEDGMENTS
The authors would like to thank the current and former ACUS
staff members who helped conceive of this project and provided helpful
feedback along the way—Alissa Ardito, Gisselle Bourns, Reeve Bull,
Michael Cole, Paul Verkuil, and Matt Weiner. They would also like to
thank those who offered helpful comments on the structure and
execution of this report—Michael Asimow, Eric Biber, Kelsi Brown
Corkran, David Freeman Engstrom, Dan Farber, Robert Loeb, Liz
Magill, Jennifer Nou, Anne Joseph O’Connell, Lee Liberman Otis, and
Nick Parrillo. For institutional support, the authors are grateful to
Michael McConnell and Josh Rosenkranz. Finally, the authors are
especially grateful to the current and former agency officials who agreed
to be interviewed for this study.

32