In the challenge to EPA’s Clean Power Plan now pending in the D.C. Circuit, the Trump Administration has moved to the hold the case in abeyance, in anticipation of EPA’s upcoming departure from the Plan. Last Friday, April 28, the D.C. Circuit agreed to hold the case in abeyance for 60 days, but the court also ordered briefing on the question of whether the whole matter “should be remanded to the agency rather than held in abeyance.”
The D.C. Circuit appears to be asking the government whether it would prefer to have what is known as a “voluntary remand”—a maneuver by which a court reviewing agency action terminates the suit altogether and sends the matter back to the agency (sometimes even vacating the agency action, as if the agency had lost). By the standards of American law, voluntary remand is extraordinary in that the lawsuit can end without the consent of one side and without an adjudication of the suit by the court. Yet in federal administrative law, voluntary remands are commonly granted when the government seeks them.
Given what is happening in the Clean Power Plan litigation, we may soon witness the most consequential voluntary remand in history. (The parties’ briefs are due Monday, May 15.)
For anyone interested in this issue—which is likely to recur as the new administration revises the policies of the old—I recommend reading Voluntary Remands: A Critical Reassessment, a new paper by Joshua Revesz, which provides the most comprehensive and up-to-date treatment of the subject in the literature and contends that courts have adopted an overly permissive approach to the government’s requests for this kind of disposition. Here is the abstract:
This paper explores and critiques the administrative law doctrine of voluntary remand. When petitioners challenge an agency policy, the agency may ask the reviewing court to return the policy to the agency for reconsideration—effectively terminating the court’s role in the case. Voluntary-remand motions risk agency opportunism and political manipulation, but are nevertheless routinely and uncritically granted by courts. The paper explores the theory and history of voluntary-remand doctrine, observing that modern administrative law developments negate many of the doctrine’s core assumptions. Accordingly, the paper calls for reassessing courts’ willingness to grant voluntary remands.
Nicholas Parrillo is a law professor at Yale Law School.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.