As a quick search through JOTWELL’s archives will prove, scholars have given no shortage of attention to universal remedies. And it’s no surprise why: the question of whether courts can grant non-party relief is not just a thorny constitutional matter; its practical effects are also immense. Therefore, the universal remedies debate has enjoyed lively back and forth, with compelling arguments—some historical, some pragmatic—issued from both camps. And while this debate raged on, the Supreme Court sat in patient wait, signaling its views with a concurrence here and there, waiting for the opportune moment to strike. And strike it did.
One might think that SCOTUS’ ruling last term in Trump v. CASA will inter the universal remedies debate, at least practically, since it ruled that “universal injunctions likely exceed the equitable authority that Congress has given to federal courts.” But this is improbable. While injunctions may be off the table, the opinion made an important caveat for alternative types of universal relief. Perhaps the most significant among these alternatives is “vacatur,” which some argue is permitted by the Administrative Procedure Act’s instruction that courts “hold unlawful” and “set aside” agency action. With standard-issue universal injunctions no longer permitted, vacatur must now work overtime to meet the demand for nationwide relief. The focus of the debate, therefore, shifts to vacatur, and all the same problems raised in CASA must now be reconsidered. Does vacatur run afoul of the same Article III principles that nationwide injunctions do? And what are its costs and benefits?
It is into this debate that Eli Nachmany enters, showing at least one pitfall to the anti-vacatur position. In his article, Vacatur as Complete Relief, Nachmany reviews a lesser-known SCOTUS case from this term—Diamond Alternative Energy v. EPA—and uses it to illustrate an unreckoned consequence of reading vacatur out of the APA.
The thrust is this: in Diamond Alternative, the Court dealt with a challenge by fuel producers against the EPA allowing California to impose strict fuel-emission standards. But the important thing to note is that the fuel producers were not regulatees. Rather, they were “unregulated third-party plaintiffs” whom the EPA regulation had “adversely impacted.” It was therefore unclear whether the plaintiffs’ injury was redressable for Article III purposes: was there sufficient likelihood that rescinding the regulation would remedy the downstream market effects that had harmed their economic interests?
The Court answered yes, appealing to “dynamic markets and the effects of interrelated economic forces and regulatory programs that change over time.” But that is hardly the most interesting part of this case. What Nachmany takes away from Diamond Energy is the fact that vacatur was the only remedy that could redress plaintiffs’ injury. Because they were not regulatees, they could not get an injunction against the agency. Nor could they enjoin the regulatees themselves, since the APA does not permit private suits. Rather, the Court had to vacate the rule altogether.
The upshot of this observation is that many injuries brought by adversely affected parties depend upon vacatur. And vice versa, killing vacatur becomes a strong medicine, since “unregulated third parties [would] not be able to challenge agency action that has a predictable, adverse effect on them.” A similar problem was brought up in Corner Post v. Board of Governors of the Federal Reserve: but in that case, as John Harrison has shown, relief could have been granted without vacatur. What Nachmany demonstrates through Diamond Alternative is that there is a meaningful class of cases whose only recourse is vacatur.
Showing great charity to his interlocutors, Nachmany acknowledges that his argument is a pragmatic one, and that “[u]nder prevailing theories of statutory interpretation… policy consequence[s] [are] largely irrelevant to the task of determining what “set aside” means in the Administrative Procedure Act.” Indeed, several authors—including John Harrison, Aditya Bamzai, and myself—have raised historical and constitutional objections to vacatur. The question, therefore, becomes whether the Court is willing to follow textualism to its bitter end, foreclosing a large swath of regulatory challenges in the process.
But in fact, the historical question is not so simple. What exactly the twentieth-century courts understood themselves to be doing when they “set aside” a rule is obscure. Scholars like Mila Sohoni have argued that the APA imports language from so-called “special statutory proceedings,” which she believes could grant universal relief. Others, like myself and Aditya Bamzai, have looked instead at the claim-preclusive effect of judgments at the time, concluding that one court’s vacatur could not bind a collateral jurisdiction. Unfortunately, there has been no silver bullet. Remarkably, however, Nachmany’s article may give us a new route towards escaping this historical quagmire.
By reformulating a remedy problem as a standing problem, the question becomes much simpler. When did courts start allowing non-regulated parties to challenge agency action? By the same logic that Nachmany reads into Diamond Alternative’s redressability problem, it follows that courts would have to grant vacatur to effect “complete relief” in challenges by non-regulated parties. To this end, he cites one circuit case from the 1940s, A.E. Staley Manufacturing Co. v. Secretary of Agriculture, where this type of suit may have been entertained. I am unsure how much should be read into this case, which I analyze in my own article. But what matters is not Staley’s holding, and instead that we now have a useful route for homing in on vacatur’s historical origin.
This procedure cuts through the impenetrable subtleties of pre-APA administrative law that scholars have used—to limited avail—in an attempt to solve whether the APA allows vacatur. The question simply becomes one of standing, a concept whose development is better documented and less complicated. By providing a strong practical argument, Nachmany has inspired us with the means towards a new history of universal relief.
