University of Notre Dame

The Path of Administrative Law Remedies

July 6, 2023

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Aditya Bamzai*

The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed to setting aside the rule solely as to the plaintiffs—is a significant and contested one.  This Essay traces the history of the statutory term “set aside” from its origins in the 1906 passage of the Hepburn Act to its 1946 placement in the APA.  During this era, Congress repeatedly used the term “set aside” in agency review statutes.  This Essay argues that, in doing so, Congress did not intend to depart from the underlying remedial framework created by the law of judgments and equity.  The traditional approach limited the ability of a stranger to litigation to enforce a judgment previously obtained by another, even if the stranger proceeded on the same legal theory.  The Essay explains how that traditional approach continues to apply in challenges to agency “adjudications” and offers some reasons for why the same approach ought to apply in challenges to those agency actions that are categorized as “rulemakings.”


My goal in this Essay is to clarify how one corner of the system of administrative remedies developed and how it functions in the present day.  The general topic is large and important—after all, everyone who initiates a lawsuit wants a remedy.  But from the passage of the Administrative Procedure Act (APA) in 19461 until recently, it perhaps did not receive the attention it deserves.2  Those who study remedies tend not to focus on the peculiarities of administrative law, which might seem to be governed by idiosyncratic statutory provisions or niche caselaw developments.  At the same time, those who study administrative law might overlook what happens after the merits of a case are resolved.  Precisely what remedies a prevailing party obtains after successfully challenging government action can seem like an afterthought, both for academics and for the courts that address administrative challenges.

Recent years, however, have brought the question of administrative law remedies to the foreground.3  Specifically, in a number of cases, the federal government has argued that the scope of an injunction is impermissibly “universal,” “national,” or “nationwide.”4  Both federal courts5 and scholars6 have responded by addressing the topic of “universal” injunctions at length.  While any one of the many cases presenting the universal-injunction question might be categorized as “administrative law,” this Essay will address an issue of particular salience to the construction of the APA and the development of administrative law remedies: What consequences flow from a court’s determination that an agency rule is “unlawful” and must be “set aside” or “vacated”?

Section 706 of the APA authorizes courts to “hold unlawful and set aside agency action.”7  In § 703, the APA also provides that “[t]he form of proceeding for judicial review is,” in the absence of a special statutory review provision, “any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus.”8  The question is precisely what judicial remedies these provisions authorize and whether the remedies differ for those agency actions that the APA defines as “rulemakings”9 and those agency actions that administrative lawyers describe as “adjudications.”10  In both instances, agency action can be “set aside,” whether on procedural grounds (such as, for example, the theory that a rulemaking has violated the APA’s notice-and-comment requirements) or substantive grounds (such as, for example, the theory that an adjudication rests on an interpretation that exceeds an agency’s statutory authority).11

But scholars and courts have differed over what “setting aside” a rule entails.  On the one hand, the APA may be understood to authorize “universal vacatur”—in other words, the invalidation of a rule with consequences both for the plaintiffs in the litigation as well as everyone else in the world.  An exemplary case expressing this perspective is Judge Stephen Williams’s opinion for the D.C. Circuit in National Mining Ass’n v. U.S. Army Corps of Engineers,12 which reasoned that “[w]hen 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.”13  On the other hand, the APA may be understood to permit a court to “set aside” the rule only as to the plaintiffs—which would permit the government to continue to apply the rule to those who are not parties to the litigation.14  If that were the meaning of “set aside,” the government might continue to apply the rule (or more accurately, pursue the same policy or interpretation announced in the rule), notwithstanding a prior “set aside” court order.  It might do so only against other parties, perhaps in other circuits or courts where the prior order is not binding precedent.

This Essay will address this topic through the lens of (1) the APA’s text; (2) the law of equity and the special statutory review provisions that formed the backdrop against which the APA was adopted; and (3) nuances in the law of judgments involving the tailoring of injunctive remedies.  I will argue that the APA’s text did not displace the background law of judgments and that background equitable principles generally require, where possible, the tailoring of relief to the parties before the court.  Where such tailoring might not be possible—such as where injunctive relief is “indivisible”—a court has the authority to issue an injunction with the collateral or ancillary consequences of benefiting nonparties.

Start with the APA’s text—specifically, the term “set aside.”  The term originates in statutory review provisions incorporated into the Hepburn Act,15 then into the Urgent Deficiencies Act,16 and later into other statutes that either incorporated the Urgent Deficiencies Act by reference or used similar terminology.17  By the time of the APA’s adoption in 1946, the “set aside” remedy had come to be equated in many (though perhaps not all) respects with the equitable remedies that formed the backdrop to the APA’s adoption.18  Accordingly, the language does not depart from, but rather incorporates, background rules of equity and judgments.19

In turn, the background rules of equity require that judgments be tailored to provide relief to the parties properly before the court.  The injunctive relief might be tailored to specific named plaintiffs or, alternatively, a class of plaintiffs in the case of representative litigation such as a class action.  But though the injunction should be tailored in this fashion, sound judicial administration requires that an opinion accompanying the judgment should explain how the court would treat similarly situated parties, if they were before the court.20  In that sense, an opinion sweeps more broadly than a judgment.  While a judgment addresses the parties, an opinion need not—and should not—be so limited.  Rather, it should address the consequences of the court’s reasoning for others, too.

This distinction between judgments, on the one hand, and a court’s reasoning, on the other, has significant explanatory value.21  The distinction is easiest to appreciate in cases involving damages.  In such cases, the judgment of a court might require the defendant, under compulsion of law, to pay a certain dollar amount to the plaintiff.  At the same time, the court’s accompanying opinion might announce if and how similarly situated parties would receive similar damage awards if they were to come before the court.  The same is true of an injunction sought by a plaintiff against a defendant.  There, the judgment protects the plaintiff from actions by the defendant through an order enforceable by sanctions for contempt of court.  At the same time, the court’s opinion declares that similarly situated plaintiffs seeking injunctive relief will be treated equally.22

Though it might sound straightforward, this distinction between a judgment and the reasoning of an opinion has important implications for remedies against the government.  These broadly applicable principles of judgments apply to damages actions and those administrative actions classified as “adjudications.”  Though there are counterarguments, I will contend that these principles ought to apply with equal force to challenges to rulemakings, as well.

This Essay proceeds as follows.  Part I addresses the APA’s text and structure.  Part II then turns to the APA’s backdrop, focusing on the background rules of equitable remedies and special statutory review schemes that use language, like the APA, authorizing a reviewing court to “set aside” agency action.  I conclude that the APA generally, and the “set aside” language in particular, did not intend to displace traditional limits on judgments and equitable remedies.  Part III discusses those limits, which required tailoring relief to the plaintiffs, where such was possible, but authorized relief with collateral benefits for nonparties where further tailoring was not possible.  Part III also discusses how those principles apply to APA “adjudications” and “rulemakings.”

Continue reading in the print edition . . .

©2023 Aditya Bamzai.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor, University of Virginia School of Law.  For helpful comments and encouragement, I owe thanks to Divya Bamzai, Sam Bray, Amanda Frost, John Harrison, Doug Laycock, Ron Levin, Caleb Nelson, Michael Patton, Jeff Pojanowski, Richard Re, Fred Schauer, Ann Woolhandler, and the editors of the Notre Dame Law Review.  All errors are my own.

1Administrative Procedure Act, ch. 324, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).

2Early commentators were quite interested in the origins and scope of remedies available in administrative law challenges.  For classic treatments, see Louis L. Jaffe, Judicial Control of Administrative Action 152–96 (1965); Frederic P. Lee, The Origins of Judicial Control of Federal Executive Action, 36 Geo. L.J. 287 (1948); see also Antonin Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions from the Public-Lands Cases, 68 Mich. L. Rev. 867, 885–86 (1970) (remarking that nineteenth-century judges had “great[] reverence for the integrity of the pleadings”).

3The issue addressed in this Essay is by no means the only one to have experienced a mini renaissance in recent years.  For another such remedial question, see the Court’s recent cases addressing the severability of statutory provisions that violate structural constitutional law: Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2207–11 (2020); United States v. Arthrex, Inc., 141 S. Ct. 1970, 1986–88 (2021); Collins v. Yellen, 141 S. Ct. 1761, 1787–89 (2021).  For a recent attempt to address the issue of severability from a “first principles” perspective, see William Baude, Severability First Principles, 109 Va. L. Rev. 1, 34–35 (2023) (briefly noting the connection between severability and the question of administrative law remedies addressed in this Essay).

4In a set of 2018 guidelines, the Department of Justice embraced the position that the APA does not allow “universal vacatur” of rules.  See Memorandum from the Office of the Att’y Gen. to the Heads of Civil Litigating Components & U.S. Att’ys, Litigation Guidelines for Cases Presenting the Possibility of Nationwide Injunctions 7, 7–8 (Sept. 13, 2018) [hereinafter Litigation Guidelines] (“In any case brought pursuant to the APA that presents the possibility of universal vacatur (i.e. the possibility that the court might vacate the rule with respect to all persons, even those who are not parties to the case), Department litigators should . . . argue that the APA’s text should not be read to displace the traditional equitable limitation of relief to the parties before the court.”).

5For cases on this topic, see City of Chicago v. Barr, 961 F.3d 882, 912–13 (7th Cir. 2020); California v. Azar, 911 F.3d 558, 584 (9th Cir. 2018); Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 511–12 (9th Cir. 2018), rev’d in part, vacated in part, 140 S. Ct. 1891 (2020); District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp. 3d 1 (D.D.C. 2020); Make the Rd. N.Y. v. McAleenan, 405 F. Supp. 3d 1, 72 (D.D.C. 2019), rev’d and remanded sub nom., Make the Rd. N.Y. v. Wolf, 962 F.3d 612 (D.C. Cir. 2020); City & Cnty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 970–74 (N.D. Cal. 2018), aff’d in part, vacated in part sub nom., City & Cnty. of San Francisco v. Barr, 965 F.3d 753 (9th Cir. 2020); City of Los Angeles v. Sessions, 293 F. Supp. 3d 1087, 1100–01 (C.D. Cal. 2018), rev’d sub nom., City of Los Angeles v. Barr, 929 F.3d 1163 (9th Cir. 2019); see also New York v. U.S. Dep’t of Health & Hum. Servs., 414 F. Supp. 3d 475, 580 (S.D.N.Y. 2019) (ordering that a challenged rule should be vacated “in its entirety”); O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019); New York v. U.S. Dep’t of Com., 351 F. Supp. 3d 502, 677 n.87 (S.D.N.Y. 2019), aff’d in part, rev’d in part, 139 S. Ct. 2551.  At least two Supreme Court Justices have questioned the propriety of universal injunctions generally.  See Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of stay); Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas, J., concurring).

6See, e.g., Mila Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920 (2020); Alan M. Trammell, The Constitutionality of Nationwide Injunctions, 91 U. Colo. L. Rev. 977 (2020); Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 418 (2017); Howard M. Wasserman, “Nationwide” Injunctions Are Really “Universal” Injunctions and They Are Never Appropriate, 22 Lewis & Clark L. Rev. 335, 336–37 (2018).

75 U.S.C. § 706 (2018).

8Id. § 703.

9Id. § 553.

10On adjudication generally, see Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. 377 (2021).

11See infra Part I.

12145 F.3d 1399 (D.C. Cir. 1998).

13Id. at 1409 (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)).  Judge Williams noted that Justice Blackmun had observed in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), that if a plaintiff prevails on a challenge to a rulemaking, “the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual.”  Id. at 913 (Blackmun, J., dissenting).

14For recent exemplary scholarship on this topic, see Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1122 (2020) (claiming that a court “generally does not set aside the rule (or its provisions) as to some parties and not others” because “vacatur leaves no rule (or provision) in place to enforce against anyone”); Bray, supra note 6, at 454 n.220, 438 n.121; Ronald A. Cass, Nationwide Injunctions’ Governance Problems: Forum Shopping, Politicizing Courts, and Eroding Constitutional Structure, 27 Geo. Mason L. Rev. 29, 56–61 (2019); Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1100 (2018); Robert L. Glicksman & Emily Hammond, The Administrative Law of Regulatory Slop and Strategy, 68 Duke L.J. 1651, 1701–07 (2019); Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1012–16 (2018); Zayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095, 2120–26 (2017).  Though I might part ways with several of these scholars at various points in this Essay, I have learned a great deal from each one of their contributions to the literature.

15Hepburn Act, ch. 3591, § 5, 34 Stat. 584, 592 (1906).

16Act of Oct. 22, 1913, ch. 32, 38 Stat. 208.

17For more on these statutes, see infra Section II.B.

18See infra Section II.B.

19Cf. Litigation Guidelines, supra note 4, at 2 (claiming that “nothing in the APA supersedes the traditional equitable limitation of relief to the parties before the court”).

20See Frederick Schauer, Giving Reasons, 47 Stan. L. Rev. 633 (1995); see also infra Part III.

21For the law of judgments generally, see 1 Henry Campbell Black, A Treatise on the Law of Judgments Including the Doctrine of Res Judicata (St. Paul, West Publ’g Co. 1891); A.C. Freeman, A Treatise on the Law of Judgments Including All Final Determinations of the Rights of Parties in Actions or Proceedings at Law or in Equity (San Francisco, A.L. Bancroft & Co. 1873).

22See Nicholas R. Parrillo, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power, 131 Harv. L. Rev. 685, 691 n.15 (2018) (“Note the distinction between (a) an agency’s noncompliance with a court order that actually binds that agency and (b) an agency’s refusal, in taking action not subject to a court order, to acquiesce in the view of the law taken by the courts that could issue an order affecting that action if a plaintiff were to sue.  The former behavior is subject to a contempt finding.  The latter behavior—known as ‘nonacquiescence’—has substantial claims to being legitimate and is practiced regularly by several federal agencies . . . .”).