Notice & Comment

D.C. Circuit Review – Reviewed: How Often Is Remand Even Worth It?

The D.C. Circuit issued just one opinion this past week, holding that the Postal Regulatory Commission, on remand from a prior decision of the D.C. Circuit, had adequately addressed the issues identified in the prior decision. The case is United Parcel Service, Inc. v. Postal Regulatory Commission, No. 23-1006, and the decision was written by Judge Rogers, joined by Chief Judge Srinivasan and Judge Garcia. The substance of the decision is about how the Commission sets prices for services where the Postal Service competes with other entities (like package delivery). Of broader interest, however, it’s an example of a case where the courts find some flaws with an initial agency decision, the case is remanded, and the agency “readopt[s] the same ‘dynamic formula’” with a “revised … analysis,” and the agency action is upheld thereafter. So, after at least two trips to the D.C. Circuit, and all the expense and time that entails, the end result is that nothing changed.

Of course, if you’re trying to challenge agency action, you’d prefer a remand over an outright loss the first time an agency action is reviewed, because it’s better to have a second chance to convince the agency to change direction than to have nothing. But how often does the remand result in any changes? And how much does it matter whether the initial remand is with or without vacatur? In a brief search, I didn’t find recent empirical data on these questions, though I’m sure it exists. (A much older study, looking at 1980s-era cases, found agencies made major changes in 40% of remands, which is a larger share than I would have predicted. See Peter H. Schuck & E. Donald Elliott, Studying Administrative Law: A Methodology for and Report on New Empirical Research, 42 Admin. L. Rev. 519, 534 (1990).) This may matter even more going forward, as the government has started to argue that the APA does not itself authorize vacatur of agency rules. Bottom line: remedy is often little briefed in admin law cases, but it probably deserves more attention than many litigants give it.

Print Friendly, PDF & Email