Notice & Comment

D.C. Circuit Review – Reviewed: Tales from the D.C. Circuit Cartel, or How to Vacate Five Rules Before Breakfast

At this blog, it goes without saying that we focus on the second highest court in the land. But every now and again, news from the highest court is too D.C. Circuit-centric to pass up. Which is unsurprising, given that four Justices hail from the august halls of the D.C. Circuit. We now have a name for that group, courtesy of Justice Kagan’s comments in this week’s argument in United States v. Texas: a “kind of D.C. Circuit cartel.”

In Texas, the Supreme Court is considering whether an immigration statute bars the district court’s order vacating DHS’s Guidelines for the Enforcement of Civil Immigration Law (among other questions). The question presented is specific to the immigration statute, but in its briefing, the government made a much broader argument—that the provision of the APA directing courts to “set aside” unlawful agency action (5 U.S.C. § 706(2)) does not authorize universal vacatur as a remedy.

Many of the Justices who had served on the D.C. Circuit drew on that experience to express, well, skepticism about this argument.

Chief Justice Roberts started it off:

CHIEF JUSTICE ROBERTS: Counsel, maybe we can move on to individual questions now, and I’m sure that some of it’ll deal with remedy, which is the one area — area we haven’t addressed yet. And, in that area, your — your position on vacatur, that 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?

GENERAL PRELOGAR: Yes, I acknowledge, Mr. Chief Justice, that the lower courts, including the D.C. Circuit, have in our view been getting this one wrong. They have reflexively assumed that vacatur is authorized under Section 706 of the APA. But what I would say is that they haven’t reached –


GENERAL PRELOGAR: — that conclusion with –

CHIEF JUSTICE ROBERTS: I mean, this is a long — that’s what the D.C. Circuit and other courts of appeals have been doing all the time as a staple of their decision output.

Justice Kavanaugh joined in, pushing back on the notion that “judges on the D.C. Circuit haven’t paid attention to text, context, and history” on this issue, commenting: “I sat with judges like Silberman and Garland and Tatel and Edwards and Williams. They paid a lot of attention to that. And the government never has made this argument in all the years of the APA, at least not that I remember sitting there for 12 years.”

Justice Jackson continued the theme, asking the government to “circle back to the  concerns that the Chief Justice and Justice Kavanaugh raised about vacatur and the argument that you’re making in this case.” This prompted Justice Kagan to remark, “Seems to be a kind of D.C. Circuit cartel,” and Justice Jackson agreed “It is.”

Incidentally, some Justices from outside the cartel voiced some skepticism, too, even though they “didn’t have the benefit of sitting on the … D.C. Circuit five times before breakfast entering these orders” (Justice Gorsuch) or “serving many years on the D.C. Circuit and vacating regulations three times before breakfast or however many … times before breakfast” (Justice Alito).

So, no matter how the government’s position fares overall—and this issue was not the main question in the case—the D.C. Circuit cartel appears unlikely to go for the government’s broader argument, at least not in this case, where it is neither the core question presented nor the focus of extensive briefing. But expect this remedial issue to be a central part of APA litigation going forward …

In brief: the D.C. Circuit issued an opinion this week in a case argued nearly a year ago, Am. Clean Power Ass’n v. FERC, No. 20-1453. At a high level of generality, the case is about how to pay for power line upgrades, pitting power line operators against power generation facilities. The D.C. Circuit held, over a dissent by Judge Rao, that FERC had not reasonably explained its decision to grant all power line operators (both those directly connected to generators and those indirectly connected) to choose between two payment methods, because the two groups were not similarly situated. Because there was a significant possibility FERC could supply a sufficient explanation, the court remanded without vacatur.

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