Comments on ACUS Draft Recommendations for Remand without Vacatur
Policy Integrity submitted comments on draft recommendations by the Administrative Conference of the United States (ACUS) Committee on Judicial Review for remand without vacatur in which a court returns a regulation to an agency for revision. This is an improvement to the traditional approach of annulling an agency action outright, which can result in creating an antiregulatory bias. But the draft recommendations could be strengthened in three ways:
First, ACUS could include a recommendation stating that remand without vacatur should be presumptively appropriate in cases where the interests of the prevailing parties would be served by the remedy. This would help preserve judicial review as a balanced part of the regulatory process.
Second, the recommendations should clarify that courts may consider asking parties for their views on the need to set a timeline for the agency to reconsider any rule that may be sent back to the agency but not annulled. A timeline for reconsideration would help keep revisions on track. Furthermore, if courts implement remand without vacatur more frequently, delays may increasingly become a problem.
Last, we suggest adding a recommendation that asks agencies to state clearly whether or not materials in the original docket will be incorporated into the docket for the remanded rule. We cite a case in which there was confusion over whether issues raised in the proceedings should be automatically incorporated into the revised rule. The default assumption should be that material from the remanded rule’s docket is not automatically incorporated into the revised rule’s record.