In a Term full of hard blows to agencies, Corner Post might end up being the hardest. But administrative law allows a remedy that could avert some the decision’s worst potential effects—remand without vacatur. 

By holding that the default statute of limitations for an APA suit begins to run when a plaintiff is injured—and not when an agency acts—Corner Post has opened up some older rules to facial challenge. In dissent, Justice Jackson noted the “profoundly destabilizing” consequences that might follow: a “tsunami of lawsuits,” potentially brought by purpose-built “new entities,” challenging “longstanding regulations,” “[n]o matter how entrenched, heavily relied upon, or central to the functioning of our society” they might be. 

Whether Justice Jackson is correct about Corner Post’s impact depends, among other things, on how many longstanding regulations are subject to the default federal statute of limitations rather than superseding timing statutes. But should cases arise with the potential to destabilize, remand without vacatur can serve as a safety valve.

Instead of vacating a deficient agency action, a court can leave it in effect while the agency reconsiders. Doing so has obvious stability benefits. It allows an agency to remedy procedural errors, revise its reasoning, or tailor its action to fit legal limits without an abrupt, possibly chaotic reversion to the status quo ante. An agency can manage the transition to a new rule with an eye to minimizing disruption and confusion. 

In the leading case, Allied-Signal Inc. v. U.S. Nuclear Regulatory Commission, the D.C. Circuit explained that “[t]he decision whether to vacate” turns on “the seriousness of the order’s deficiencies” and “the disruptive consequences” of vacatur during the remand. 

In the kinds of Corner Post cases that are causing agencies agita—those challenging, as Justice Jackson put it, “the baseline rules around which businesses and individuals order their lives”—it is not hard to see how Allied-Signal comes into play: The disruption of vacating established rules is a reason not to vacate them. Justice Jackson noted that many longstanding regulations have fostered weighty reliance interests: industry players have “ma[de] investments,” “change[d] their practices,” and “enter[ed] contracts” in light of them. Beyond that, older rules are frequently embedded into intricate regulatory schemes, with other rules built atop them. The disruption of vacatur in that situation could be significant—to the point that a court might even struggle to assess what the full consequences would be. Under these circumstances, a court deciding the appropriate remedy for a legal defect in an old rule might stay its hand.

Of course, Allied-Signal has another factor. If it is unlikely that a rule’s legal defect can be fixed, that weighs in favor of vacatur. But short of a categorical legal bar to an agency’s action, even a serious deficiency does not require vacating a rule. In Allied-Signal itself, the court doubted that certain agency errors in reasoning could be cured but declined to vacate. A survey by the Administrative Conference of the United States concluded that “either of the Allied-Signal factors is potentially dispositive in a given case and a court need not find that an agency decision is capable of rehabilitation in order to avoid vacating a rule.” So, while it is impossible to predict in a generic way the seriousness and type of legal errors that Corner Post challenges may uncover in old rules, remand without vacatur should be available in many cases.

Remand without vacatur cannot undo the ills Justice Jackson sees in Corner Post. After all, a remanded rule is an invalid one. But, like other tools of remedial discretion, remand without vacatur allows courts to balance harms—and, in so doing, mitigate disruption. It could prove an important and appropriate means for courts and agencies to cooperatively manage a destabilizing new regime while protecting reliance interests as much as possible. If and when the Corner Post “tsunami” swells, agencies, advocates, and courts should keep Allied-Signal at the ready. The cases in which Corner Post’s rule poses the biggest threat may end up being the cases where vacatur is least appropriate.

(This post has put to the side two relevant controversies. First, whether the APA permits remand without vacatur. Second, whether the APA permits vacatur.)

Jordan Ascher is a Policy Counsel at Governing for Impact.