AuthorBamzai, Aditya


My goal in this Essay is to clarify how one corner of the system of administrative remedies developed and how it functions in the present day. The general topic is large and important--after all, everyone who initiates a lawsuit wants a remedy. But from the passage of the Administrative Procedure Act (APA) in 1946 (1) until recently, it perhaps did not receive the attention it deserves. (2) Those who study remedies tend not to focus on the peculiarities of administrative law, which might seem to be governed by idiosyncratic statutory provisions or niche caselaw developments. At the same time, those who study administrative law might overlook what happens after the merits of a case are resolved. Precisely what remedies a prevailing party obtains after successfully challenging government action can seem like an afterthought, both for academics and for the courts that address administrative challenges.

Recent years, however, have brought the question of administrative law remedies to the foreground. (3) Specifically, in a number of cases, the federal government has argued that the scope of an injunction is impermissibly "universal," "national," or "nationwide." (4) Both federal courts (5) and scholars (6) have responded by addressing the topic of "universal" injunctions at length. While any one of the many cases presenting the universal-injunction question might be categorized as "administrative law," this Essay will address an issue of particular salience to the construction of the APA and the development of administrative law remedies: What consequences flow from a court's determination that an agency rule is "unlawful" and must be "set aside" or "vacated"?

Section 706 of the APA authorizes courts to "hold unlawful and set aside agency action." (7) In [section] 703, the APA also provides that "[t]he form of proceeding for judicial review is," in the absence of a special statutory review provision, "any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus." (8) The question is precisely what judicial remedies these provisions authorize and whether the remedies differ for those agency actions that the APA defines as "rulemakings'" (9) and those agency actions that administrative lawyers describe as "adjudications." (10) In both instances, agency action can be "set aside," whether on procedural grounds (such as, for example, the theory that a rulemaking has violated the APA's notice-and-comment requirements) or substantive grounds (such as, for example, the theory that an adjudication rests on an interpretation that exceeds an agency's statutory authority). (11)

But scholars and courts have differed over what "setting aside" a rule entails. On the one hand, the APA may be understood to authorize "universal vacatur"--in other words, the invalidation of a rule with consequences both for the plaintiffs in the litigation as well as everyone else in the world. An exemplary case expressing this perspective is Judge Stephen Williams's opinion for the D.C. Circuit in National Mining Ass'n v. U.S. Army Corps of Engineers, (12) which reasoned that "[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated--not that their application to the individual petitioners is proscribed." (13) On the other hand, the APA may be understood to permit a court to "set aside" the rule only as to the plaintiffs--which would permit the government to continue to apply the rule to those who are not parties to the litigation. (14) If that were the meaning of "set aside," the government might continue to apply the rule (or more accurately, pursue the same policy or interpretation announced in the rule), notwithstanding a prior "set aside" court order. It might do so only against other parties, perhaps in other circuits or courts where the prior order is not binding precedent.

This Essay will address this topic through the lens of (1) the APA's text; (2) the law of equity and the special statutory review provisions that formed the backdrop against which the APA was adopted; and (3) nuances in the law of judgments involving the tailoring of injunctive remedies. I will argue that the APA's text did not displace the background law of judgments and that background equitable principles generally require, where possible, the tailoring of relief to the parties before the court. Where such tailoring might not be possible--such as where injunctive relief is "indivisible"--a court has the authority to issue an injunction with the collateral or ancillary consequences of benefiting nonparties.

Start with the APA's text--specifically, the term "set aside." The term originates in statutory review provisions incorporated into the Hepburn Act, (15) then into the Urgent Deficiencies Act, (16) and later into other statutes that either incorporated the Urgent Deficiencies Act by reference or used similar terminology. (17) By the time of the APA's adoption in 1946, the "set aside" remedy had come to be equated in many (though perhaps not all) respects with the equitable remedies that formed the backdrop to the APA's adoption. (18) Accordingly, the language does not depart from, but rather incorporates, background rules of equity and judgments. (19)

In turn, the background rules of equity require that judgments be tailored to provide relief to the parties properly before the court. The injunctive relief might be tailored to specific named plaintiffs or, alternatively, a class of plaintiffs in the case of representative litigation such as a class action. But though the injunction should be tailored in this fashion, sound judicial administration requires that an opinion accompanying the judgment should explain how the court would treat similarly situated parties, if they were before the court. (20) In that sense, an opinion sweeps more broadly than a judgment. While a judgment addresses the parties, an opinion need not--and should not--be so limited. Rather, it should address the consequences of the court's reasoning for others, too.

This distinction between judgments, on the one hand, and a court's reasoning, on the other, has significant explanatory value. (21) The distinction is easiest to appreciate in cases involving damages. In such cases, the judgment of a court might require the defendant, under compulsion of law, to pay a certain dollar amount to the plaintiff. At the same time, the court's accompanying opinion might announce if and how similarly situated parties would receive similar damage awards if they were to come before the court. The same is true of an injunction sought by a plaintiff against a defendant. There, the judgment protects the plaintiff from actions by the defendant through an order enforceable by sanctions for contempt of court. At the same time, the court's opinion declares that similarly situated plaintiffs seeking injunctive relief will be treated equally. (22)

Though it might sound straightforward, this distinction between a judgment and the reasoning of an opinion has important implications for remedies against the government. These broadly applicable principles of judgments apply to damages actions and those administrative actions classified as "adjudications." Though there are counterarguments, I will contend that these principles ought to apply with equal force to challenges to rulemakings, as well.

This Essay proceeds as follows. Part I addresses the APA's text and structure. Part II then turns to the APA's backdrop, focusing on the background rules of equitable remedies and special statutory review schemes that use language, like the APA, authorizing a reviewing court to "set aside" agency action. I conclude that the APA generally, and the "set aside" language in particular, did not intend to displace traditional limits on judgments and equitable remedies. Part III discusses those limits, which required tailoring relief to the plaintiffs, where such was possible, but authorized relief with collateral benefits for nonparties where further tailoring was not possible. Part III also discusses how those principles apply to APA "adjudications" and "rulemakings."


    The APA says little about the remedies that a party might obtain through a successful challenge to agency action. Scholars and litigants have argued that two provisions in the statute--[section] 703 and [section] 706--might concern remedies.

    To start with the first of the two, consider [section] 703. (23) It provides that "[t]he form of proceeding for judicial review is," in the absence of a special statutory review provision, "any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus." (24) While the provision does not identify a specific remedy on its face--indeed, it points to "any applicable form of legal action"--it hints at some forms of proceedings that the APA permits, where appropriate. Thus, a plaintiff can obtain a "declaratory judgment[]" or "writ[] of prohibitory or mandatory injunction" or a writ of "habeas corpus." (25) Each of these forms of proceeding carries a kind of remedy with it. Section 703 does not establish the remedy's contours, but rather borrows the form of remedy from a set of background principles (about declaratory judgments, writs of injunction, writs of habeas corpus, and the like). Section 703 thus appears to instruct courts to use an appropriate remedy from among those traditionally granted.

    The form of proceeding that was most clearly on the mind of the drafters of the APA in 1946 was the "bill in equity," which provided much of the framework for judicial control of agency action in the early twentieth century. (26) For example, the Final Report of the Attorney General's Committee on Administrative Procedure ("1941 Attorney General...

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