"Vacation" at Sea: Judicial Remedies and Equitable Discretion in Administrative Law

By Levin, Ronald M. | Duke Law Journal, November 2003 | Go to article overview

"Vacation" at Sea: Judicial Remedies and Equitable Discretion in Administrative Law


Levin, Ronald M., Duke Law Journal


ABSTRACT

Scholars have rarely examined the remedial issues that federal courts may face when they find that an administrative agency has acted unlawfully. This Article presents a broad survey of that topic in the course of exploring a narrower doctrinal issue: the validity of "remand without vacation." That term denotes a practice whereby a court remands an agency action for further work but allows the action to remain in place during the remand proceedings. In recent years many appellate panels have resorted to this practice in order to minimize disruption of an ongoing administrative program or to protect private reliance interests.

Some argue that this very untraditional form of relief is prohibited by section 706 of the Administrative Procedure Act, which provides that a reviewing court "shall ... set aside" an agency action that violates one of the review standards codified therein. This Article contends, however, that section 706 should not be read literally, but rather in light of a longstanding canon of statutory construction that disfavors interpretations that would displace the equitable remedial discretion of the federal courts. The Article traces the history of that discretion in the administrative law context and examines its numerous manifestations in modern case law.

The tradition of remedial discretion is not without limits, however. Several recent cases, in which the Supreme Court has evinced a preference for bright-line rules over equitable balancing, suggest that at least some Justices would have doubts about remand without vacation. Indeed, a peek at some of the Court's internal working papers confirms the existence of such doubts. Moreover, this remedial device is subject to practical objections--most notably, that it might unduly relax pressure on agencies to do their work carefully the first time around, and discourage private citizens from initiating court actions to challenge agency orders.

Nevertheless, this Article defends remand without vacation as a legitimate exercise of discretion. The practice entails relatively simple judgments, not drastically different from determinations that courts have often made in the past. Moreover, the practical worries about the device have not been borne out by experience to date. Accordingly, the Article advocates continued but cautious use of remand without vacation. Relying in part on guidelines endorsed by the American Bar Association, the Article concludes by suggesting standards to guide the courts' exercise of discretion in this area.

Introduction

I.   The Emergence of Remands Without Vacation

II.  Remand Without Vacation and the APA
     A. Checkosky v. SEC
     B. Section 706 Reexamined

III. Remands and the Remedial Discretion of the
     Federal Courts
     A. The Equitable Remedial Tradition in
        Administrative Law
     B. The Modern Prevalence of Remedial Discretion
     C. Equitable Discretion to Withhold Injunctive Relief

IV.  Potential Objections to Remand Without Vacation
     A. The Formalist Challenge
        1. The Decline of Retroactive Rulemaking
        2. The Rise of Retroactivity in Judicial Decisions
        3. Implications for Remand Without Vacation
     B. Avoidance of "Administrative" Judgments
        1. The Case Law
        2. Implications for Remand Without Vacation
     C. Underenforcement of Administrative Law Values

V.   Implementing Remand Without Vacation

Conclusion

Appendix

INTRODUCTION

A decade ago Professor Barry Friedman described the academic literature on judicial remedies in constitutional litigation as "noticeably sparse," at least in comparison with the literature on constitutional rights. (1) In an accompanying footnote he listed thirty articles as "[a]mong the most important" contributions to this supposedly meager body of work/As a scholar who specializes in a closely allied field of public law, I find myself wanting to reply: "You call that sparse? …

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