Remands Without Vacatur
When a court remands a rule without vacatur, it leaves the rule in place while typically providing the issuing agency with an additional opportunity to address a flaw in the rule or rulemaking process. Reasonable minds could differ over how to treat this remedy in terms of agency wins and losses. Is it a win because the rule wasn’t totally cast aside? Or is it a loss because the court found that the agency made an error? Our study coded all controlling opinions based on a court’s conclusions about the challenged provision(s) rather than the remedy ordered, which means that remands without vacatur were coded as either agency losses or mixed results. But some readers may find deeper analysis of this data interesting.
Across all administrations, roughly 21% of overall agency losses (i.e., losses and mixed results combined) by controlling opinions resulted in remands without vacatur. Here, too, however, results differed by administrations. The percentage of losses resulting in remands without vacatur declined steeply in the first Trump Administration. It declined further during the Biden Administration. This could suggest that courts have become less willing to use the remedy or that the flaws found in the Trump or Biden Administration’s major rules were more likely to cause courts to vacate (or totally strike down) these rules rather than remand for the agency to fix them.
