Notice & Comment

On Universal Vacatur, the Supreme Court, and the D.C. Circuit, by Jonathan H. Adler

During oral argument in Department of Education v. Brown, the second case concerning the Biden Administration’s student loan forgiveness plan, the question arose whether it is proper for a single district or circuit court to impose a nationwide injunction against a federal policy where doing so is not necessary to provide complete relief to the parties before the court. While federal courts are empowered to “hold unlawful and set aside” agency action, Solicitor General Elizabeth Prelogar has argued that this does not necessarily mean that a successful challenge to an agency action in a lower court can or should result in a nationwide or universal vacatur of the agency rule or action at issue.

This discussion at oral argument was a reprise of SG Prelogar’s argument in United States v. Texas, in which she pressed the position that when a lower court holds an agency action to be unlawful, it need not (indeed, should not) impose a nationwide vacatur. Relying on the work of UVA law professor John Harrison (see also here), Prelogar argued that “The APA did not create a novel remedy of universal vacatur.” I think Prelogar (and Harrison) are correct here, but this is anything but a consensus view.

Several justices disagreed quite strongly with Prelogar’s argument, with those justices who served on (or had been nominated to) the U.S. Court of Appeals for the D.C. Circuit voicing the loudest objections. The Chief Justice in particular was incredulous.

[Y]our 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?

I think the Chief Justice is wrong here. Let me explain why.

When the D.C. Circuit vacates an agency action, it does not enter nationwide relief. Indeed, judges on the D.C. Circuit do not usually give the question much thought when issuing opinions. In most cases they don’t have to. This is because in most cases party-specific relief against a federal agency in the D.C. Circuit has the practical effect of nationwide relief whether or not the court says that is what it is doing.  There are exceptions, such as when the D.C. Circuit is reviewing a district court order imposing a preliminary injunction against an agency, but they are exceptions that highlight the general rule. As I explain below, this is an artifact of the D.C. Circuit’s jurisdiction, combined with the binding effect of circuit precedent, and not a necessary consequence of a single court vacating a rule under the Administrative Procedure Act nor the result of the D.C. Circuit consciously entering nationwide or universal relief in individual cases absent those rare cases in which parties seek injunctive relief of a given scope. 

[I should note that there are exceptions, and there is language in a few D.C. Circuit opinions to the effect that “when 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,” Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989), but there are also D.C. Circuit decisions justifying explicit nationwide relief on more practical considerations, such as the potential threat of duplicative litigation, rather than on claims that the APA requires such a result.]

Interestingly enough, an exchange between SG Elizabeth Prelogar and Justice Brett Kavanaugh in the second student loan case argument highlights the role jurisdiction plays on the effect of circuit court decisions invalidating agency actions. In this exchange, Justice Kavanaugh asked the SG whether the federal government would follow applicable circuit court precedent that provided party-specific relief “in that circuit.” SG Prelogar responded that “as a practical matter” the federal government does generally follow such precedent “in the circuit,” adding that “we treat it as binding within the relevant circuit” (emphases mine), noting that the question here is not the effect of circuit precedent so much as when a single district or circuit court imposes “an obligation to follow it throughout the nation.” As the SG explained, the reason for the acquiescence is practical. Agency officials “understand that even if the relief didn’t formally extend beyond the parties, obviously the precedential force” of a court’s opinions counsel compliance within a given court’s jurisdiction.

As this exchange made clear, federal agencies generally acquiesce to adverse circuit court decisions within that circuit. Yet they do not necessarily acquiesce to such judgments in other circuits. To the contrary, there is a long practice of agency non-acquiescence to adverse circuit court decisions in the rest of the country. One of my favorite examples of this concerns the “migratory bird rule” defining the scope of regulatory jurisdiction under the Clean Water Act. After the U.S. Court of Appeals for the Fourth Circuit affirmed a district court holding that this rule was not properly promulgated, the Environmental Protection Agency and U.S. Army Corps of Engineers were precluded from relying on this rule when enforcing the CWA within the Fourth Circuit, but they continued to rely upon it throughout the rest of the country until (some twelve years later) the Supreme Court invalidated the rule on substantive grounds.

So what makes the D.C. Circuit different? (And why do justices with D.C. Circuit-oriented experience not see this?) I think the answer is the D.C. Circuit’s jurisdiction and the power of circuit precedent. When a party wishes to challenge an agency action, sometimes they can challenge the action in the D.C. Circuit, sometimes they must file a challenge in a regional district or circuit court. What choices the challenger has is a function of the governing statutes and the choices Congress has made about whether to allow or require challenges to particular programs to be filed in particular courts. (See, for example, 42 U.S.C. §7607, which details where different types of challenges to EPA actions under the Clean Air Act must be filed. Some go to the D.C. Circuit, and some do not. The recent Supreme Court case National Association of Manufacturers v. Department of Defense concerned similar provisions in the Clean Water Act.)

As it happens, if one challenger has the ability to challenge an agency action in the D.C. Circuit, it is almost always the case that every challenger does. What this means is that once the D.C. Circuit has held that an agency action is unlawful, every other would-be challenger may rely upon the precedent in a challenge of their own, and those challenges will also occur in the D.C. Circuit. So once the D.C. Circuit upholds a challenge to an agency action and vacates or “sets aside” the agency action, as a practical matter it has been set aside or vacated for the nation as a whole (unless, of course, the D.C. Circuit decides to remand without vacatur, as sometimes happens, but that’s a subject for another post). This is particularly so when the challenge arises as a facial, pre-enforcement challenge, which a great many of challenges to agency actions in that court are. In such cases the D.C. Circuit does not formally enter a universal or nationwide vacatur because it does not have to. Providing relief to the parties has the same effect for most purposes.

A successful challenge to an agency action in a district court or regional circuit court, on the other hand, does not have this same effect. Just because one party can file a challenge to an agency action in Texas or California does not mean that everyone can (even if state AGs and others are getting increasingly creative on this front). Thus when agency actions are challenged outside of the D.C. Circuit, the only way for the decision to have nationwide effect is for the court to expressly enter nationwide relief, such as by entering a universal injunction against the agency. Providing party-specific relief in the Fourth Circuit effectively vacates the agency action in Maryland, Virginia, North Carolina, and South Carolina, but does not necessarily have any effect in the rest of the country, unless the agency opts to acquiesce–or a party successfully petitions for express nationwide relief.

This is all a long way of saying that the position advanced by SG Prelogar in recent arguments is entirely consistent with the D.C. Circuit’s longstanding practice in the mine run of cases challenging agency action and is not nearly the departure from conventional practice as some of the justices (and some commentators) would seem to think. There are some exceptions and special cases, to be sure, but they are just that: exceptions and special cases (and this post is long enough as it is).

It also highlights how radical the increasing practice of imposing nationwide relief in the context of individual cases filed in carefully selected district courts truly is. Where Congress has wanted challenges to agency actions to produce nationally uniform results, it has crafted the relevant jurisdiction and venue provisions accordingly. And where it hasn’t, we should assume Congress was content to let individual parties seek relief for themselves as the underlying issues percolate up through the court system. Thus, unless there are particular circumstances that weigh heavily in favor of nationwide relief (as might be the case with some immigration questions where less-than-nationwide relief may be tantamount to no relief), it seems to me we should let court jurisdiction and circuit court precedent do the work of determining whether successful challenges to agency actions have nationwide effect and be comfortable with the idea that individual courts offering universal or nationwide relief should be the exception and not the rule. 

Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. He blogs regularly at the Volokh Conspiracy.

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