Fixing the Fix: The Case for Unifying the Remedial Framework of APA Rulemaking Challenges

Authors

Dea Devlin, Fordham University School of Law

Keywords

vacatur; remand; remand without vacatur; injunction; injunctive relief; relief; remedies; agency law; Administrative Procedure Act; APA; vacatur; injunction; remand without vacatur; APA remedies; equitable relief; nationwide remedies; universal vacatur; res judicata; regulatory uncertainty; rulemaking challenges; judicial review; agency action; administrative law; statutory interpretation; heightened standard; eBay test; Monsanto Co. v. Geertson Seed Farms; Allied- Signal test; equitable principles; status quo ante; prospective relief; remedial framework; administrative litigation; judicial consistency; agency accountability; regulatory disruption; separation of powers; public interest; proportional remedies; litigation strategy; nationwide injunctions; federal courts; doctrinal coherence; legal scholarship; administrative state; federal rulemaking; remedy unification; procedural fairness; legal remedies

Abstract

Vacatur is the default remedy for successful administrative rulemaking challenges brought under the Administrative Procedure Act (APA). Yet its broad and sweeping effects raise critical questions regarding its appropriateness as a one-size-fits-all remedy. Unlike injunctive relief, which is subject to a rigorous heightened standard, and remand without vacatur, which has a comparable standard of its own, vacatur is routinely awarded without similar scrutiny, leading to inconsistencies in the judicial application of remedies in APA challenges.

Although vacatur can provide a plaintiff with relief, its award conflicts with underlying principles of equity and proportionality. In rulemaking challenges, vacatur can create regulatory uncertainty while bypassing legal principles such as res judicata, which exists to protect the interests of nonparties to the lawsuit.

This Note explores the judicial treatment of remedies in APA rulemaking challenges, examines the imbalances stemming from vacatur’s presumptive status as a remedy, and critiques the lack of a uniform standard governing APA remedies more broadly. This Note argues that vacatur, remand without vacatur, and permanent injunctions should be treated as three forms of injunctive relief subject to one heightened standard, a showing of which warrants their necessity. By adopting a uniform framework that considers the fact-specific nature of APA challenges, courts can ensure that the remedies awarded, all of which have the potential to fundamentally affect parties outside the challenge, are tailored to address plaintiffs’ injuries while minimizing unnecessary disruption to regulatory systems and public interests.

Recommended Citation

Dea Devlin, Fixing the Fix: The Case for Unifying the Remedial Framework of APA Rulemaking Challenges, 94 Fordham L. Rev. 223 (2025).
Available at: https://ir.lawnet.fordham.edu/flr/vol94/iss1/5