Notice & Comment

We Have Been Looking in the Wrong Place for the Meaning of “Set Aside” Under the APA

A vigorous debate recently has emerged over whether the APA authorizes federal courts to vacate agency action on judicial review. Perhaps because this debate is an outgrowth of the longer-running dispute over “nationwide” or “universal” injunctions, it is operating on the premise that vacatur is a remedy, like an injunction or a declaratory judgment. I’m working now on a new paper in which I argue that this premise is mistaken: vacatur under the APA is not a remedy; it’s an appellate determination.

Starting from the premise that vacatur is a remedy causes us to look in the wrong places to find the APA’s meaning. Vacatur’s critics are quite right to point out that, at the time the APA was adopted, there was no recognized remedy of vacatur. And from the vacatur-as-a-remedy perspective, it seems strange that the APA’s drafters would acknowledge some remedies in § 703 and then stealthily create a brand new one is § 706. Searching the APA’s legislative history or other contemporary legal sources for the remedial meaning of “set aside” is a frustrating enterprise. On the other hand, vacatur’s defenders rightly identify examples of pre-APA courts annulling or vacating challenged agency action, including in suits seeking, e.g., an injunction against an agency not subject to a special statutory review provision.

The APA’s meaning becomes clearer when we start from a different and widely accepted premise: the APA codified an appellate model of judicial review. As Tom Merrill has demonstrated, the Supreme Court constructed the appellate review model in the decades before the APA was adopted. Participants on both sides of the vacatur debate acknowledge and seem to accept this proposition. What has gone unrecognized is that it offers an alternative–and much more fruitful–approach to interpreting the APA.

Starting from the appellate-model premise suggests an entirely different place to look for the statute’s meaning. Instead of looking to pre-APA remedial law, we should look to pre-APA appellate principles. These principles are found in the pre-APA law of appeal and error, which itself underwent fundamental reform during the first half of the twentieth century. Appeal (the equitable device) and the writ of error (the principal common law device) eventually were merged as part of the broader merger of law and equity, and the law governing the unified subject was rationalized through a combination of statutory reform and court rules.

The law of appeal and error defined the appellate relationship during the critical pre-APA period and can therefore shed light on the meaning and operation of the APA’s appellate model of judicial review. In undertaking this approach, it is helpful to read the APA’s judicial provisions as originally enacted in 1946. Today, these appear as separate provisions codified in Chapter 7 of Title 5 of the U.S. Code. But they originally were enacted as subsections of a singular section (§ 10) on “Judicial Review.” See pp. 8-9, here. The phrase “set aside,” which now appears in § 706, can only be understood within the broader context of the regime Congress codified in § 10.

When you look at the APA through the appellate lens, it becomes clear that “set aside” in § 706 is merely the synonym Congress chose to describe an appellate determination that reverses, annuls, or vacates the challenged agency action. To see this, consider the purely judicial analogue. A district court issues a judgment. The losing party appeals. The appellate court’s role is to determine whether the lower court erred under the applicable standards of review. As expressed in 28 U.S.C. § 2106, an appellate court has a limited menu of options as to the “[d]etermination” it may make on review:

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.

Having made its determination, the appellate court issues the mandate, thus returning the case to the district court for further proceedings consistent with the appellate court’s determination and opinion. So too in judicial review of agency action under the APA.

The validity of this approach to interpreting “set aside” is corroborated by the reality that, viewed through the appellate lens, the whole of the APA’s judicial review regime becomes coherent. (Again, to see it all together, look at § 10 as enacted in 1946. See pp. 8-9, here.) The right to review is extended to parties “adversely affected or aggrieved” by agency action. The statute provides procedural guidance about how and where aggrieved parties can exercise this right. Only final agency action–not interlocutory decisions–are reviewable. Some relief from challenged agency action may be available while the action is on judicial review. Reversal is available only when agency action is determined to be unlawful under the established standards of review. All of these statutory elements (and others as well!) can be found in the pre-APA law of appeal and error. The appellate model fits the APA like a glove.

Now, of course the APA codified only an appellate model of judicial review, a quasi-appeal inspired by judicial practices but tailored to suit the needs of administration. This introduces unique features and confusing oddities into the APA’s regime. The standards of review are similar to–and yet distinct from–their purely judicial analogues. And in review under the APA, the scope of the legal effect of a court’s determination to “hold unlawful and set aside” challenged agency action may seem to vary considerably, depending on the scope of the agency action on review. If the action is an order, the effect is limited to that order and the party(ies) to it. If the action is a rule, however, the effect of the court’s determination may seem to be broader. But that is only because a rule by its nature is broader. The oddity in the administrative context is that the inferior tribunal–the agency–may have broader jurisdiction than the court that Congress has cast in the appellate role. A related oddity is that Congress may send appeals from agency action to either appellate courts or trial courts. A final oddity that also obscures the appellate nature of the APA’s regime is that the inferior tribunal–the agency–is also a party to the case on judicial review.

Finally, the appellate model offers a different approach to addressing the separation of powers concerns that animate the debates over universal injunctions and vacatur. I’ll explore that approach in my article, but suffice it to say that we should banish the notion that the APA’s drafters were unaware of the separation of powers implications of empowering federal courts to review administrative action, including agency action that took the form of legislative rules. They were keenly aware. And they chose to keep courts and agencies in their respective lanes by codifying an appellate model of judicial review.

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