VACATUR, NATIONWIDE INJUNCTIONS, AND THE EVOLVING APA.

• Author: Levin, Ronald M.

INTRODUCTION 1998 I. THE ADMINISTRATIVE PROCEDURE ACT AND ITS INTERPRETATION 2002 II. THE NEED FOR UNIVERSAL RELIEF IN JUDICIAL REVIEW OF RULES 2005 III. REVISIONIST ACCOUNTS OF [section] 706 AND INJUNCTIVE RELIEF 2007 A. Proposed Reinterpretations of the Statutory Text 2009 B. History-Based Arguments 2012 C. Setting Aside as Disregarding 2015 IV. A FLEXIBLE READING OF [section] 706 2019 V. CRITERIA FOR UNIVERSAL RELIEF 2023 VI. REFORM SUGGESTIONS 2026 A. Presumption Favoring Stays of Vacatur or Universal Injunctions Pending Appeal 2027 B. Three-Judge Courts 2029 C. Geographical Forum Shopping 2031 CONCLUSION 2034 INTRODUCTION

The permissibility and proper role of so-called universal or nationwide injunctions' in constitutional and administrative law is a prominent source of controversy these days. There is already a considerable literature on the policy issues raised by such decrees. To simplify the question greatly, injunctions that apply nationwide can provide a particularly powerful judicial response to statutes and rules that are found to be unlawful, (2) but they can also give rise to concerns about the enormous power that such decrees afford to individual judges, sometimes to the detriment of the opportunity of other courts to weigh in on the same issue. The potendal availability of such injunctions can also distort the litigation process by augmenting plaintiffs' incentives to file their actions in a forum that is likely to favor their positions. (3)

Some of the disputants in this ongoing debate have used the perceived ills of the universal injunction as a jumping-off point for raising far-reaching questions about the fundamental structure of the judicial review regime established by the Administrative Procedure Act. (4) Those questions will be the initial focus of this Article. I have written on this subject before, both individually (5) and in collaboration with Mila Sohoni. (6) Here I will review and elaborate on that work as it pertains to current controversies. I will then use this analysis as a foundation for exploring broader policy issues and reform proposals regarding universal relief.

This inquiry will require an examination of two types of remedies that courts frequently invoke when they have determined that an administrative rule is unlawful. (7) The injunction--whether or not nationwide in scope--is one of these. The other is vacatur--a judicial order declaring that the rule shall no longer have legal effect. These two remedies are technically distinct, because an injunction binds the defendant and is enforceable through contempt, whereas a vacatur binds only the agency to which it is directed. In functional terms, however, a vacatur can have roughly the same effects as a nationwide injunction.

The capacity of the universal relief debate to generate controversy over fundamental APA issues became glaringly apparent during an oral argument in the Supreme Court in November 2022. In United States v. Texas, (8) the Court is currently reviewing the legality of guidelines issued by the Department of Homeland Security to set priorities for detention and removal enforcement under the immigration laws. (9) The district court in this case had found that the guidelines violated the APA and had ordered that the guidelines be vacated throughout the country. (10) At argument, Solicitor General Elizabeth Prelogar (SG) took the position that a judicial decree under the APA may not vacate or enjoin an agency rule on a universal basis; normally, she suggested, it should only provide relief for the benefit of the prevailing challenger. (11) Chief Justice Roberts responded with considerable consternation, as did other members of the Court who, like the Chief Justice, had previously served as judges on the D.C. Circuit. "[Y]our position on vacatur," Chief Justice Roberts said,

sounded to me to be fairly radical and inconsistent with, for example, you know, with those of us who were on the D.C. Circuit, you know, five times before breakfast, that's what you do in an APA case. And all of a sudden you're telling us that, no, you can't vacate it, you do something different. Are you overturning that whole established practice under the APA? (12) When the SC confirmed that she thought that "the lower courts, including the D.C. Circuit, have... been getting this one wrong," (13) Roberts replied with a "[w]ow." (14) The SG went on to assert that the lower courts had not been paying attention to the text, context, and history of the APA. (15) Justice Kavanaugh, another D.C. Circuit veteran, met her assertion directly. He noted that he had served on that court with very eminent judges who paid a lot of attention to those factors. (16) He added that the SG's claim was "a pretty radical rewrite, as the Chief Justice says, of what's been standard administrative law practice." (17) Justice Jackson joined in their criticism. (18)

In the wake of these unsympathetic, if not hostile, reactions from what Justice Kagan jokingly called the "D.C. Circuit cartel," (19) it seemed clear that the Court was not likely to accept the SG's view in this case. Indeed, as some of their colleagues observed, the Court did not really have to reach this issue at all. (20) Nevertheless, the Court did not appear close to agreeing on an explanation as to why the SG's arguments were unfounded. Nor did these colloquies shed light on the issue of how, if at all, the Court would be able to reconcile longstanding vacatur practice with the objections to nationwide injunctions that some of the other Justices have expressed in past cases. (21) The Court will have to address these issues before long. Hence the need for scholarship to analyze these and related issues.

More specifically, this inquiry will revolve around the interrelationship between two APA provisions. Section 703 provides in relevant part that

[t]he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. (22) The most immediately relevant language in [section] 706 provides that "[t]he reviewing court shall... hold unlawful and set aside agency action, findings, and conclusions found to be" in violation of six listed standards of review. (23)

In the United States v. Texas case, the SG's line of argument was largely inspired by scholarship by Professor John Harrison, who has written voluminously on the subject during the past few years. (24) Harrison's ideas also find support in the work of Professor Samuel Bray, which has also exerted influence at the Supreme Court level (25) and has contributed historical dimensions to the revisionist turn in legal scholarship on this issue. In this Article I will undertake to provide a counterpoint to the theories expounded by Harrison and Bray. The general thrust of my argument is to agree with the "D.C. Cartel" that the body of caselaw on rulemaking review under the APA is not in need of drastic overhaul. At the same time, I will suggest that some of those Justices' ideas are in need of clarification and refinement.

Part I of this Article offers a brief introduction to some basic features of the APA system of judicial review of agency rules, emphasizing how interpretation of that Act has evolved over time to accommodate emerging realities. Part II explains why reviewing courts need the option of vacating or enjoining rules on a universal basis. Part III provides a critique of several theories that Harrison and Bray have deployed in order to cast doubt on central premises of that system. Part IV provides what I consider a more balanced and realistic framework for understanding the relationship between [section][section] 703 and 706. In the course of this discussion, I will try to clear up some contested points, including the apparently mandatory import of the "shall... set aside" language of [section] 706, the permissibility of vacatur, and the interrelationship between [section] 706 of the APA and general injunctions practice as reflected in [section] 703.

In Part V I will take up specific applications of my framework, including the manner in which courts can apply it to both vacatur and nationwide injunctions. Finally, Part VI offers some suggestions for reforms that could serve to discourage unnecessary universal relief and ameliorate some of the detrimental effects that such relief can bring about.

1. THE ADMINISTRATIVE PROCEDURE ACT AND ITS INTERPRETATION

   I will begin by emphasizing the creativity and flexibility that pervades judicial interpretation of the APA. I have recently written at length about this pattern. (26) Some commentators characterize the Act as a "superstatute" in order to highlight the fact that it is frequently construed in a more open-ended manner than most legislation--a manner that somewhat resembles constitutional interpretation. (27) For example, the Court's interpretation of [section] 702 allows for standing to sue in a manner that is completely at odds with the text of that provision. (28) Moreover, the Court has recently and unanimously declared that an agency must reply to significant comments that it receives in a rulemaking proceeding, (29) although nothing in the text supports that interpretation.

   This flexibility, this rejection of originally contemplated meaning, most definitely applies to the APA's scope of review provision, [section] 706, which is central to this Article's analysis. Many principles that are commonly ascribed to this section differ considerably from the expectations of the Congress that enacted it, such as the requirement of hard-look review and the principle that the facts underlying a rule must have support in the record of the proceeding. (30)

   Much of the evolution in the...