The Administrative Conference of the United States (ACUS) Committee on Judicial Review accepted a recommendation made by Policy Integrity on remand without vacatur.
Remand without vacatur is when a court returns a regulation to an agency for revision but leaves the original rule intact while revisions are pending, instead of the traditional approach of striking down the original rule entirely until a new rule can be promulgated and approved. Depending on the interests of the parties involved, remand without vacatur can be an improvement over the traditional approach for two reasons: it allows net benefits from the original rule to accrue while the new regulation is pending and it removes the antiregulatory bias that can discourage plaintiffs from challenging a rule for being too lenient.
Our recommendation on prioritizing the interest of the prevailing party was discussed at length and had support, but was ultimately defeated on a relatively close vote. ACUS adopted our recommendation to clarify the scope of the administrative record—modified to indicate that it applied only to notice-and-comment rulemaking—even though it was opposed by the committee.
We submitted our comments in November 2013 to help strengthen ACUS’s draft recommendations.