Notice & Comment

The Meaning of “Set Aside” in 5 U.S.C. § 706(2), by John Harrison

This post adds to the debate about the meaning of “set aside” in 5 U.S.C. § 706(2). That provision of the Administrative Procedure Act instructs courts reviewing agencies to “hold unlawful and set aside agency action, findings, and conclusions” that meet the descriptions that follow, such as those that are “contrary to constitutional right, power, privilege, or immunity,” 5 U.S.C. § 706(2)(B). Section 706(2) is important to the question of remedies under the APA. That provision is especially important with respect to the question of universal remedies, which are not limited in their effect to the parties.

According to one view, to set aside agency action is to give a remedy that deprives the action of binding legal force. That remedy includes, or is another name for, vacatur in a sense similar to that in which an appellate court vacates the judgment of a lower court.[1] According to another view, section 706(2) is concerned with courts’ reasoning process in deciding the merits of cases, not with remedies.[2] The provision instructs courts to disregard unlawful action, findings, and conclusions and instead decide according to the courts’ own views.

A case that the Supreme Court will hear in the October, 2022 Term, United States v. Texas,[3] raises the question whether section 706(2) directs courts to set aside agency rules by vacating them.[4] Vacatur of an agency rule deprives the rule of all binding force, and therefore is an inherently universal remedy. The conclusion that the APA calls for a universal remedy in an important category of cases would have considerable practical importance.

This post elaborates on and defends the position that “set aside” in section 706(2) means disregard in the court’s decisional process, and is not a directive to give a remedy of setting aside. Because section 706(2) does not tell courts to give a remedy of vacatur as setting aside, that provision does not call for a universal remedy.

The conclusion that “set aside” means disregard in the process of decision follows from the meaning of “set aside” in the context of section 706 and the rest of the APA. One natural use of “set aside” involves decisional processes, including those of courts. To set aside a possible consideration in making a decision is to disregard that consideration, putting it out of the way of the path of decision. For example, in ordinary usage someone might say, “I heard a rumor along those lines, but because it was a rumor, I set it aside in deciding what to do.” Legal usage also includes that way of using “set aside.” In Home Building & Loan v. Blaisdell,[5] Chief Justice Hughes mentioned that courts “set aside” unconstitutional statutes.[6] Unconstitutional statutory rules are legally inoperative, and courts disregard them in deciding cases.[7]

That use of “set aside” fits the context in which section 706(2) appears. Section 706 is titled “Scope of review.” Scope of review is a fundamental concept in administrative law, because rules about scope of review determine the extent to which courts decide issues independently, rather than deferring to agencies. The title “Scope of review” indicates that the provision is about courts’ decisional process, and the content of the rule it codifies is a foundational principle about courts’ decisional process: courts decide question of law de novo. Section 706 begins by enunciating that principle: “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”[8]

Section 706(2) applies that principle to situations in which an agency has not been passive. That provision applies to agency action, findings, and conclusions, all of which can be set aside in the sense of being disregarded. Many agency actions, such as legislative-type rules, claim binding legal force. When an agency action of that kind is unlawful, a court sets the action aside by treating it as legally inoperative and deciding accordingly. In a criminal prosecution to enforce a legislative regulation that is unlawful because contrary to constitutional immunity, for example, the court treats the regulation as having imposed no duty that the defendant’s conduct could violate.[9] The court disregards the regulation’s purported binding force and gives judgment for the defendant. In a declaratory proceeding challenging a legislative regulation, once the court disregards an unlawful regulation’s claim of binding force and follows its own conclusion that the regulation is void, the court can declare that the plaintiff has no duty to comply. When an agency action such as an interpretative rule claims authority but not binding force, and the court finds the rule to be legally erroneous, the court gives the rule no weight and disregards it.

In many cases, agency findings and conclusions underlie an agency decision that adversely affects a party but does not purport to bind the party legally. Findings and conclusions often underlie the decision to engage in physical activities, for example building a road or detaining an individual. If a decision to build a road rested on a mistaken conclusion of law concerning the use of parkland, section 706(2) tells a reviewing court to disregard the agency’s conclusion, resolve the issue for itself, and decide accordingly, for example by enjoining the construction project.[10] If a decision to detain an individual rested on a finding of fact that was arbitrary, the court will disregard the finding, decide for itself, and if appropriate order the detainee released via habeas.[11]

When a reviewing court reaches the merits, section 706(2) tells it to disregard unlawful agency action, findings, and conclusions, and decide for itself. Understood as a directive to disregard the unlawful, section 706(2) can be applied in all proceedings for judicial review. The same cannot be said of the reading that makes “set aside” a directive to give a remedy that deprives agency action of legal effect, or that makes those words a more general directive to give whatever affirmative remedy is called for. As to the latter possibility, in some cases that call for an affirmative remedy, setting aside is inapposite. In other cases no affirmative remedy is called for.

Damages suits provide an example of a form of proceeding for judicial review in which a directive to give a remedy of setting aside would be nonsensical. A damages plaintiff who prevails is entitled to a judgment specifying an amount to be paid, not a statement that an official’s tort has been set aside. A successful habeas petitioner similarly is entitled to an order of release, and the relief for a plaintiff who successfully objects to a highway project often is an injunction against construction. A statement that the agency’s decision was set aside would not satisfy a successful habeas petitioner or injunctive plaintiff. Damages plaintiffs and habeas petitioners seek relief with respect to physical acts, as do plaintiffs seeking injunctions against construction projects and similar government activities. Vacatur, which is directed to government acts that claim binding legal force, is not useful to plaintiffs who object to physical activity.

Criminal prosecutions based on regulations, by contrast, involve government acts that claim binding legal force. When judicial review is conducted in a criminal enforcement proceeding and the court concludes that the regulation underlying the prosecution is unlawful, the court disregards the regulation but does not give any affirmative remedy. The court need set the regulation aside only in the sense of disregarding it.

Setting aside as vacatur thus would be irrelevant in many forms of proceeding for judicial review. That remedy would be apposite, however, in one important form of judicial review. Vacatur operates on agency action that claims binding legal effect, and deprives the action of that effect, the way vacatur of a lower court’s judgment deprives it of effect. Setting aside as vacatur therefore is adapted to cases that seek prospective relief against agency action that claims binding legal force. Vacatur is inapposite in cases involving physical activities such as detention and construction projects. Vacatur is also inapposite in cases involving the binding legal force of agency action as to events that have already taken place. A criminal defendant who argues that a regulation is unlawful seeks a determination that the regulation was unlawful at the time of the defendant’s conduct, not an order depriving the regulation of future legal effect. Pre-enforcement review of regulations, important as it is, is only one form of judicial review. Section 706(2) applies to all forms. It must be read to give a directive that a court can follow whenever it reviews an agency under the APA.

Reading “set aside” in section 706(2) as “disregard in the court’s decisional process” gives “set aside” a natural meaning that fits the context of a provision about scope of review and that applies in all forms of proceeding for judicial review. In other statutory contexts, a directive to set aside an agency action does refer to giving a remedy. Many special statutory review provisions tell the court to set aside agency action, referring to a remedial step.[12] In non-legal usage too, “set aside” can have more than one meaning. A rumor can be set aside as part of a decisional process, and a doughnut can be set aside to be eaten later by putting it in the refrigerator. Like many phrases, “set aside” can be used in different ways in different contexts. The context of section 706 is the extent to which courts decide issues for themselves – scope of review.

The context of section 706(2) includes section 706(1). Section 706(1) provides that reviewing courts shall “compel agency action unlawfully withheld or unreasonably delayed.” Professors Ronald M. Levin and Mila Sohoni argue that section 706(1) gives a directive concerning remedies, that the two subsections operate in parallel, and that therefore section 706(2) gives a directive to set aside.[13]

Sections 706(1) and 706(2) are not parallel with respect to remedies, however. First, the point of section 706(1) is to make clear that agency inaction is subject to judicial review. Agency decisions not to act that are contrary to law are not conclusive on the courts. Providing that affirmative remedies are available for inaction reiterates that point. With respect to unlawful official acts, by contrast, the availability of affirmative remedies when appropriate was familiar in 1946 and well before.[14] The APA’s drafters had no need to reiterate that principle.

Second, the proper response to unlawful inaction can be briefly described, as section 706(1) briefly describes that response with “compel.” The appropriate response to unlawful acts cannot be briefly summarized. Defendants prosecuted under unlawful regulations prevail, and the court gives no affirmative remedy. Even an attempt to describe only affirmative remedies would not be useful. Injunctions and declarations and damages judgments and orders of release and so forth can be described only in terms so general as to be uninformative. “Compel” makes a point that “and decide accordingly, giving affirmative relief when appropriate” does not.

If section 706(2) nevertheless is read in parallel with section 706(1), the former does not add to the law of remedies. Section 706(1) does not name a remedy, but points to whatever remedy is called for. When a court compels agency action, it usually does so with a mandatory injunction.[15] If to set aside is to give whatever remedy is called for, when a remedy is called for, the words “set aside” add no more to the law of remedies than “compel” adds. On the reading of “set aside” that makes section 706(2) parallel to section 706(1) as to remedies, vacatur would have to be grounded in a source of remedies law, not section 706. In non-statutory review cases like the United States v. Texas litigation, vacatur might be found in federal equity. At most, section 706(2) refers to a remedy of vacatur found elsewhere, and does not independently call for vacatur.

Much more plausibly, however, in a provision that addresses scope of review, to set aside an unlawful agency action, finding, or conclusion is to disregard it in deciding the case. The questions of law listed in section 706(2) are within the scope of judicial review, and therefore are decided by courts. By deciding the issues listed in that provision independently, courts uphold the supremacy of law.[16] When appropriate, they then give remedies, pursuant to the applicable law of remedies.

John Harrison is the James Madison Distinguished Professor of Law and Thomas F. Bergin Teaching Professor, University of Virginia.

[1] The leading exposition of this position is Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121 (2020).

[2] See, e.g., John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies, 37 Yale J. Reg. Bull. 37 (2020).

[3] United States v. Texas, No. 22-58 (U.S. 2022) (certiorari granted July 21, 2022).

[4] The district court in that case found that a Department of Homeland Security memorandum governing immigration enforcement policy was unlawful, and entered an order purporting to vacate the memorandum. See Application for a Stay of the Judgment Entered by the United States District Court for the Southern District of Texas, app., at 128a-129a, United States v. Texas, No. 22-58 (U.S. 2022) (reproducing the district court decision issuing an order vacating the memorandum and explaining that the APA contemplates “wholesale vacatur” of rules).

[5] 290 U.S. 398 (1934).

[6] Id. at 432 (Hughes, C.J.) (stating that an earlier case set aside an unconstitutional statute).

[7] See Marbury v. Madison, 5 U.S. 137 (1803).

[8] 5 U.S.C. § 706. According to the report of the House Judiciary Committee on the APA, “This section [10(e)] provides that questions of law are for the courts rather than agencies to decide in the last analysis and it also lists the several categories of questions of law.” H.R. Rep. No. 79-1980, at 44 (1946). The Senate Judiciary Committee report uses identical language. S. Rep. No. 79-752, at 28 (1945).

[9] Criminal prosecutions are a form of proceeding for judicial review. 5 U.S.C. § 703.

[10] A classic exposition of the role of courts in reviewing agency decisions is found in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971), in which the plaintiffs sought to block a plan to build a highway through a park.

[11] See 5 U.S.C. § 703 (describing actions for habeas corpus as proceedings for judicial review). See, e.g., Ludecke v. Watkins, 335 U.S. 160 (1948) (reviewing detention of enemy alien in habeas proceeding pursuant to the APA).

[12] See, e.g., 29 U.S.C. § 160(e) (authorizing courts of appeals “to make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the” NLRB when the Board petitions the court to enforce its order).

[13]  Ronald M. Levin & Mila Sohoni, Universal Remedies, Section 706, and the APA, Yale J. Reg. Notice & Comment, (July 19, 2020).

[14] See, e.g., Little v. Barreme, 6 U.S. 170 (1804) (awarding damages against a naval officer for unlawfully seizing a vessel pursuant to the President’s orders).

[15] See 5 U.S.C. § 703 (listing actions for mandatory injunction as proceedings for judicial review).

[16] “The supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied and whether the proceeding in which facts were adjudicated was conducted regularly.” St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 75 (1936) (Brandeis, J., concurring).

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