Skyworks, Ltd. v. Centers for Disease Control and Prevention

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SKYWORKS, LTD, et al., ) Case No. 5:20-cv-2407

)

Plaintiffs, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge

) Carmen E. Henderson

CENTERS FOR DISEASE )

CONTROL AND PREVENTION, )

et al., )

)

Defendants. )

)

OPINION AND ORDER

Previously, the Court determined that orders the Centers for Disease Control

and Prevention issued implementing a nationwide eviction moratorium exceed the

agency’s statutory authority in Section 361 of the Public Health Service Act,

42 U.S.C. § 264(a), and are, therefore, invalid. (ECF No. 54, PageID #1882.) Shortly

after that, another district court within this Circuit reached the same conclusion. See

Tiger Lily, LLC v. United States Dep’t of Hous. & Urb. Dev., ___ F. Supp. 3d ___, ___,

2021 WL 1171887, at *10 (W.D. Tenn. Mar. 15, 2021), motion for stay pending appeal

denied, 992 F.3d 518, 523–24 (6th Cir. 2021). So too did another district court. See

Alabama Ass’n of Realtors v. United States Dep’t of Health & Hum. Servs., ___

F. Supp. 3d ___, ___, 2021 WL 1779282, at *9 (D.D.C. May 5, 2021), stayed pending

appeal, ___ F. Supp. 3d ___, 2021 WL 1946376 (D.D.C. May 14, 2021). Although the

moratorium was set to expire on March 31, 2021, the CDC extended it through

June 30, 2021. See Temporary Halt in Residential Evictions to Prevent the Further

Spread of COVID-19, 86 Fed. Reg. 16,731 (Mar. 31, 2021).

Plaintiffs move to alter or amend the earlier judgment in this case seeking to

clarify the scope of the judgment the Court issued. (ECF No. 58.) Specifically, they

seek a ruling on whether the Court’s judgment binds only the parties to this action

or applies more broadly and, if so, how far. On these questions, the parties disagree.

Plaintiffs, a collection of landlords, property managers, and a trade association

representing similar persons, maintain the CDC’s order, which sets a nationwide

policy, has no validity nationally or, at least, within the Northern District of Ohio.

For its part, the CDC reads the Court’s ruling narrowly as binding only the parties

to this case. This dispute implicates complex legal issues and doctrines about which

much remains unsettled and the subject of debate.

I. Threshold Procedural Issues

Before wading into those choppy waters, the Court addresses two procedural

matters Defendants raise.

I.A. Standing

Defendants maintain Plaintiffs lack standing to seek to expand the relief

obtained on the merits for the benefit of those not parties to the litigation. “[A]

plaintiff must demonstrate standing for each claim he seeks to press and for each

form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645,

1650 (2017) (quotations and citations omitted). Defendants argue that Plaintiffs lack

standing because they cannot show what injury to Plaintiffs a nationwide remedy

redresses. (ECF No. 60, PageID 1981.)

This argument misses the mark. Apparently, Defendants construe Plaintiffs’

motion as a new request, almost a new lawsuit. But the Court determined Plaintiffs

have standing as part of its previous ruling. (ECF No. 54, PageID #1867–69.) That

determination analyzed redressability. (Id.) Instead of a new claim, Plaintiffs seek

to alter or amend the previous judgment, which they had standing to seek through

this litigation, to determine or make clear as a matter of law the scope of the remedy

ordered. That is not a new inquiry, but part and parcel of the merits of the litigation

already addressed.

As a formal matter, the authorities on which Defendants rely trace back to the

maxim that “standing is not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358

n.6 (1996). By this sound bite, the Supreme Court meant that “the right to complain

of one administrative deficiency” does not “automatically confer[] the right to

complain of all administrative deficiencies.” Id. In this respect, a “remedy must of

course be limited to the inadequacy that produced the injury in fact that the plaintiff

has established.” Id. at 357 (citing Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995)).

In other words, as Lewis made clear, a court may not remedy one unlawful

administrative action by declaring unlawful another. Id. Plainly, Plaintiffs do not

seek to do so here. Instead, their motion remains focused on CDC’s eviction

moratorium. Plaintiffs have standing and, on reconsideration of the record, the Court

adheres to this view.

I.B. Rule 59(e)

A court may alter or amend the judgment where there is a clear error of law,

newly discovered evidence, or an intervening change in controlling law or to prevent

manifest injustice. GenCorp, Inc. v. American Int’l Underwriters, 178 F.3d 804, 834

(6th Cir. 1999) (citations omitted). Such relief constitutes an extraordinary remedy

reserved for exceptional cases. Hines v. Commissioner of Soc. Sec., 414 F. Supp. 3d

1080, 1081 (S.D. Ohio 2019) (citations omitted). It is not an opportunity to re-argue

matters or “to raise arguments which could, and should, have been made before

judgment issued.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d

367, 374 (6th Cir. 1998) (quoting Federal Deposit Ins. Corp. v. World Univ. Inc., 978

F.2d 10, 16 (1st Cir. 1992)).

On the basis of this standard, Defendants urge summary denial of Plaintiffs’

motion, arguing they could have raised questions regarding the proper scope of relief

before judgment issued. In fact, they did. For example, in briefing on Plaintiffs’

motion for a preliminary injunction, they argued for a nationwide injunction. (ECF

No. 33, PageID #401 n.1.) Further, the Court’s ruling apparently left an ambiguity

regarding the scope of the relief ordered. In fairness, review of the Court’s ruling

shows that it did not expressly address how far the remedy ordered extends. For this

reason, the Court determines that this case presents the rare and exceptional case

warranting consideration of a motion to alter or amend the judgment. The Court

owes the parties, the public, and the Sixth Circuit at least that much.

II. Scope of the Remedy

The parties agree that the Court’s ruling declaring the eviction moratorium

invalid extends to the parties, including members of the National Association of

Homebuilders. (ECF No. 58, PageID #1958; ECF No. 60, PageID #1982.) Under the

Administrative Procedure Act, a challenge to agency action may take the form of a

declaratory judgment. 5 U.S.C. § 703. Where, as here, an agency exceeds its

statutory authority, Congress directs a court to “hold unlawful and set aside” agency

action. Id. § 706(2). Plaintiffs’ motion implicates the scope these statutory remedies,

each of which the Court addresses in turn.

II.A. Declaratory Judgments

Under 28 U.S.C. § 2201(a), titled “Creation of Remedy,” a court “may declare

the rights and other legal relations of any interested party seeking such declaration,

whether or not further relief is or could be sought. Any such declaration shall have

the force and effect of a final judgment or decree and shall be reviewable as such.”

On the face of the statute, a declaratory judgment extends only to an “interested

party” and has “the force and effect of a final judgment.” Id.

A declaratory judgment is an equitable remedy in the nature of an injunction.

Determining what this axiom means and how it applies here requires some discussion

of the historical origins of this remedy. Notwithstanding the vintage of declaratory

judgments, much about their basic application and function remains unclear. See,

e.g., Florida ex rel. Bondi v. U.S. Dep’t of Health & Hum. Servs., 780 F. Supp. 2d 1256,

(N.D. Fla. 2011) (rejecting Department of Justice’s argument that a declaratory

judgment has no effect until the conclusion of appeals), rev’d on other grounds sub

nom. National Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). For this reason

as well, some discussion of the jurisprudence developing the remedy is in order and

will help explicate the remedial character of a declaratory judgment.

II.A.1. Non-Traditional Remedy

Enactment of the federal Declaratory Judgment Act traces in part to the

seminal case of Ex parte Young, 209 U.S. 123 (1908). Although States enjoy immunity

against suit in federal court under the Eleventh Amendment, the Supreme Court

ruled in that case that lawsuits alleging violations of federal law may proceed in

federal court against State officials. Id. at 143, 145. Further, the Supreme Court

authorized federal courts to enjoin State officials from enforcing laws that violate the

Constitution, including by commencing criminal proceedings. Id. at 159–62. In the

“storm of controversy” the ruling stirred up, Congress took steps to cabin the power

of the federal courts to enjoin enforcement of State laws. Steffel v. Thompson, 415

U.S. 452, 465 (1974).

In 1919, States began enacting declaratory judgment statutes, largely as a part

of legal reform efforts of the day. 10B Wright, Miller & Kane, Federal Practice and

Procedure § 2752 (4th ed. 2016). A leading advocate for their adoption described the

effect of declaratory judgments as “not . . . creating new legal relations of a secondary

or remedial character; they purport merely to declare preexisting relations and create

no secondary or remedial ones. Their distinctive characteristic lies in the fact that

they constitute merely an authentic confirmation of already existing relations.”

Edwin M. Borchard, The Declaratory Judgment—A Needed Procedural Reform, 28

Yale L.J. 1, 5 (1918) (footnotes omitted). In other words, the advent of the declaratory

judgment enabled State courts to resolve disputes by means other than issuing an

injunction or awarding monetary damages.

But questions regarding the constitutionality of such judgments under Article

III forestalled the adoption of the remedy at the federal level. See, e.g., Willing v.

Chicago Auditorium Ass’n, 277 U.S. 274, 284, 289 (1928) (noting in an opinion by

Justice Brandeis that a declaratory judgment lies beyond the judicial power under

Article III). In 1933, the Supreme Court reversed course when reviewing a State

court declaratory judgment. Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 259

(1933). There, a taxpayer sued State tax officials arguing, among other things, that

the tax at issue violated the Constitution. Rejecting the constitutional challenge, the

Supreme Court held that it had jurisdiction over an action for declaratory judgment,

which presented a controversy in the constitutional sense even though the plaintiff

did not seek a coercive decree. Id. at 264–65.

The year after Wallace, Congress enacted the Federal Declaratory Judgment

Act of 1934, 48 Stat. 955, in part as a delayed reaction to the antisuit injunction

upheld in Ex parte Young. See Steffel, 415 U.S. at 466. When the Supreme Court

upheld the Act’s constitutionality, it characterized a declaratory judgment as a non-

traditional remedy within the power the Constitution delegates to Congress to control

the jurisdiction of the federal courts. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,

240 (1937). Indeed, the Act followed quickly on the heels of the Rules Enabling Act,

another object of legal reform efforts aimed at judicial administration. See, e.g.,

Andrew Bradt, “Much to Gain and Nothing to Lose”: Implications of the History of

the Declaratory Judgment for the (b)(2) Class Action, 58 Ark. L. Rev. 767, 780

(2005–06).

II.A.2. Distinct from Injunctions

Distinguishing between declaratory and injunctive relief took some time and

development through case-by-case adjudication, much of which involved the

complicated interplay between federal judicial power and State proceedings in the

long wake of Ex parte Young. As relevant here, a declaratory judgment merits

separate consideration from a request for injunctive relief. In Zwickler v. Koota, 389

U.S. 241, 242–45 (1967), a gentleman who distributed literature critical of a

congressional candidate in the 1964 elections was convicted of violating a State law

that outlawed distributing anonymous leaflets. On appeal in State court, his

conviction was overturned, and he then sought both declaratory and injunctive relief

in federal court on the ground that the First Amendment barred his re-trial. After

the lower federal courts abstained, the Supreme Court noted that the injunction

sought would restrain the prosecution from proceeding, while the request for a

declaratory judgment sought a different remedy—a ruling that the State statute

violated the Constitution. Id. at 253.

Accordingly, the Supreme Court determined that an injunction and a

declaratory judgment require independent consideration under the separate

standards governing each. Id. at 254. The Supreme Court held “that a federal district

court has the duty to decide the appropriateness and the merits of the declaratory

request irrespective of its conclusion as to the propriety of the issuance of the

injunction.” Id.

II.A.3. Similar Practical Effect

Despite the formally different requirements and standards governing each

remedy, the practical effect is similar. In Younger v. Harris, 401 U.S. 37, 41 (1971),

the Supreme Court held that principles of equity, comity, and federalism bar the

federal courts from enjoining a prosecution in State court absent special

circumstances. The same day, the Court extended this holding to declaratory

judgments directed at a State criminal prosecution. Samuels v. Mackell, 401 U.S. 66,

73 (1971). In doing so, the Supreme Court recognized that a declaratory judgment

lays the foundation for subsequent injunctive relief under Section 2202. Id. at 72.

Even where no injunction follows, “the declaratory relief alone has virtually the same

practical impact as a formal injunction,” including application of preclusion doctrine.

Id. With an injunction, a federal court may enforce compliance. In contrast, a

declaratory judgment functions through persuasion, but is a step toward coercive

means if necessary. See 28 U.S.C. § 2202.

Applying these principles in a third case decided the same day, the Supreme

Court reversed a federal district court’s grant of an injunction ordering the return of

materials seized pursuant to State and local obscenity laws and vacated the balance

of the judgment. Perez v. Ledesma, 401 U.S. 82, 88 (1971). Regarding the part of the

ruling vacated, a dissent characterized a declaratory judgment as “a milder

alternative” to an injunction. Id. at 111 (Brennan, J., dissenting in part). The dissent

went on to observe that “the considerations governing the grant of a declaratory

judgment are quite different from those governing the grant of an injunction, even

though both forms of relief are discretionary and thus, in the broad sense of the term,

‘equitable’ in nature.” Id. at 122 (Brennan, J., dissenting in part). This view shortly

later commanded a majority at the Supreme Court. Steffel, 415 U.S. at 466–67.

II.A.4. Judgment and Preclusion Doctrine

Though perhaps milder than an injunction in some respects, a declaratory

judgment results in the entry of a judgment and all that goes with it. “Any such

declaration shall have the force and effect of a final judgment or decree and shall be

reviewable as such.” 28 U.S.C. § 2201(a). “A valid and final judgment in an action

brought to declare rights or other legal relations of the parties is conclusive in a

subsequent action between them . . . .” Restatement (Second) of Judgments § 33

(1982). As a judgment, a declaratory judgment has the same binding force as any

final judgment in any other type of action. Id.; 10B Wright, Miller & Kane, Federal

Practice and Procedure, § 2771 (2016).

Given the nature of a declaratory judgment, however, one feature of the

remedy differs from others—its preclusive effect in other proceedings. Res judicata

or claim preclusion bars re-litigating claims and defenses raised in an earlier

proceeding. Collateral estoppel or issue preclusion operates similarly, but with

respect to particular issues. See Continental Cas. Co. v. Indian Head Indus., Inc., 941

F.3d 828, 835 (6th Cir. 2019). These general principles necessarily apply somewhat

differently to declaratory judgments. By its nature, a declaratory judgment decides

a discrete issue in dispute such that claim preclusion does not and cannot apply to

later actions. Id. (citing Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 600

F.3d 190, 196 (2d Cir. 2010)) (discussing the declaratory judgment exception to claim

preclusion). In other words, it makes no sense to bar later claims or defenses that go

beyond the issue presented in an action for a declaratory judgment. Id.; see also

28 U.S.C. § 2202 (contemplating actions or proceedings following a declaratory

judgment).

But a declaratory judgment retains its full force and effect when it comes to

issue preclusion. Continental Cas., 941 F.3d at 835 n.1 (citing Restatement (Second)

of Judgments § 33). Again, the nature of the action dictates that logical result.

Significantly, a declaratory judgment does not ordinarily preclude (re-)litigation of an

issue by one who was not a party to the action seeking the declaratory judgment. See

Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 556 (6th Cir. 2008). Nor may a non-party

attempt to use a judgment from a case to which it was not a party against the federal

government or its officials. United States v. Mendoza, 464 U.S. 154, 162 (1984).

II.A.5. Nationwide Relief

To the extent a declaratory judgment is equitable in nature or has some

commonalities with an injunction, Plaintiffs’ motion implicates a more immediate

subject of controversy in the federal courts, which the parties debate in their briefs:

the availability of universal or nationwide injunctions, a more familiar form of

equitable relief.

In his concurrence in Trump v. Hawaii, 138 S. Ct. 2392, 2424–25 (2018),

Justice Thomas noted the increasing frequency of such injunctions and expressed

skepticism that district courts have the authority to issue them. Although a full

discussion of the issues this ongoing debate implicates is not necessary to resolve the

pending motion, a few points from Justice Thomas’s concurrence merit brief mention.

Historically and “as a general rule, American courts did not provide relief beyond the

parties to the case.” Id. at 2427 (Thomas, J., concurring). Complete peace required

joining those with common interests as parties. Id. These traditional limits on equity

began to loosen by the second half of the last century when some courts began to

conceive of the judicial function as resolving general legal questions, not simply the

disputes of particular litigants. Id. at 2428. Beyond these limits on the equitable

powers of the courts, Justice Thomas grounded his skepticism in the need for legal

questions to percolate through the federal courts, concerns over forum shopping, and

creating national emergencies for the courts and the Executive Branch. Id. at 2425.

In dissent, Justice Sotomayor joined by Justice Ginsburg opined that the

district court did not abuse its discretion by issuing a nationwide injunction “[g]iven

the nature of the Establishment Clause violation and the unique circumstances of

this case.” Trump v. Hawaii, 138 S. Ct. 2392, 2446 n.13 (2018) (Sotomayor, J.,

dissenting). Although the dissent did not go further in explaining its reasoning, the

little it did provide suggests that nationwide injunctions may be appropriate in its

veiw in some cases, particularly those that seek to remedy constitutional harms.

Subsequently, Justice Gorsuch joined by Justice Thomas concurred in granting

a stay pending appeal of an order enjoining the so-called public charge rule.

Department of Homeland Sec. v. New York, 140 S. Ct. 599, 599 (2020) (Gorsuch, J.,

concurring). Put more plainly, a district court blocked the rule, and the Supreme

Court allowed the rule to remain in effect pending resolution of the merits on appeal.

Justice Gorsuch criticized the growing use of universal or nationwide injunctions. Id.

at 600. Noting that “[e]quitable remedies, like remedies in general, are meant to

redress the injuries sustained by a particular plaintiff in a particular lawsuit,” Justice

Gorsuch raised “serious questions” whether Article III permits courts to grant such

relief. Id. Further, he observed that extending a remedy beyond the parties to a case

makes courts appear to be acting in a political, not judicial, capacity. Id.

Additionally, Justice Gorsuch expressed the belief that good judicial decision making

counseled against nationwide relief. Id. at 600–01.

Debate among the Justices continued in Little Sisters of the Poor Saints Peter

& Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2412 n.28 (2020) (Ginsburg, J.,

dissenting). In dissent, Justice Ginsburg joined by Justice Sotomayor reiterated the

view the two Justices expressed in their dissent in Trump v. Hawaii that a

nationwide injunction may be appropriate in certain circumstances. Here, they relied

on the text of the Administrative Procedure Act to provide complete relief to the

plaintiffs and redress harm not bounded by State lines. Little Sisters, 140 S. Ct.

at 2412 n.28 (Ginsberg, J., dissenting).

Recently, the Sixth Circuit also spoke to the proper scope of an injunction

enjoining enforcement of an administrative rule. Gun Owners of America, Inc. v.

Garland, 992 F.3d 446, 474 (6th Cir. 2021). Because the Sixth Circuit reversed the

district court’s decision not to issue a preliminary injunction, the court did not have

occasion to expound on the issue much more than did Justice Thomas in his

concurrence in Trump v. Hawaii. To provide guidance on remand, however, the Sixth

Circuit directed that the scope of the injunction “may not exceed the bounds of the

four states within the Sixth Circuit’s jurisdiction and, of course, encompasses the

parties themselves.” Gun Owners of America, 992 F.3d at 474. Declining to permit

a universal or nationwide injunction, the court noted that other circuits had upheld

the rule at issue, and it was reluctant to “create an absurd situation in which the ATF

must prevail in every single case brought against the Final Rule in order for its

interpretation to prevail.” Id. Instead, the court saw value in percolation of the issue

in the lower courts. Id.

Although the availability of universal or nationwide injunctions remains the

subject of ongoing debate among courts, scholars, and the political branches, the

Court need not enter the fray. In their current motion, Plaintiffs do not seek

reconsideration of the denial of an injunction. Nor do they seek the entry of universal

or nationwide injunctive relief. For present purposes, this discussion highlights the

considerations animating the Sixth Circuit’s recent guidance on the issue that,

perhaps, has prudential force in understanding the scope of somewhat analogous

equitable relief.

II.A.6. Scope of a Declaratory Judgment

With the benefit of this background, some basic principles regarding

declaratory judgments come into focus that bear on the pending motion. “A

declaratory judgment is simply a statement of rights, not a binding order

supplemented by continuing sanctions.” Steffel, 415 U.S. at 482 (Rehnquist, J.,

concurring). Although in some sense equitable in nature, different considerations

govern the issuance of an injunction and declaratory relief, making each a distinct

remedy. See, e.g., Zwickler, 389 U.S. at 254; American Safety Equip. Corp. v. J.P.

Maguire & Co., 391 F.2d 821, 824 (2d Cir. 1968) (describing a declaratory judgment

as “a statutory creation” that is “neither legal nor equitable”). A declaratory

judgment has full issue-preclusion effect, Continental Cas., 941 F.3d at 835 n.1 (citing

Restatement (Second) of Judgments § 33), but does not foreclose later litigation by

those who are not parties to the action, see Scottsdale Ins., 513 F.3d at 556, although

those non-parties may not bind the federal government to the earlier ruling, see

Mendoza, U.S. at 162.

Accordingly, the Court concludes that a declaratory judgment binds the

parties, but only the parties, wherever they may be. This result tracks the language

of the Declaratory Judgment Act, which empowers courts to declare the rights “of any

interested party.” 28 U.S.C. § 2201 (emphasis added). On its face, this statutory

language limits the scope of a declaratory judgment to a party. Here, then,

declaratory relief extends to Plaintiffs and, as the parties recognize and agree,

members of the National Association of Homebuilders.

II.B. Administrative Procedure Act

While the Administrative Procedure Act authorizes judicial review through an

action for a declaratory judgment, 5. U.S.C. § 703, it also empowers courts to “hold

unlawful and set aside agency action,” id. § 706(2). Plaintiffs maintain that the

statute authorizes vacatur (setting aside the agency action) on a nationwide basis.

Indeed, they go further and argue the statute requires such a remedy where, as here,

the agency has exceeded the authority Congress gave it and taken action that applies

nationally, though Plaintiffs point out that the Court has discretion to fashion a

remedy that does not reach so far. Defendants contend the Act does not authorize

nationwide relief and that various legal and policy reasons counsel against reading

the statute as Plaintiffs urge or extending relief beyond the parties to this dispute.

In marshaling their respective positions, the parties draw on a host of competing

authorities. Those authorities show, somewhat surprisingly, that the scope of relief

under the Administrative Procedure Act in a case like this remains unsettled and less

understood than the nature of a declaratory judgment.

II.B.1. Plain Language and Structure of the Statute

To resolve the dispute over the proper scope of the remedy on the facts and

circumstances of this case, the Court begins with the text of the statute. In relevant

part, the Administrative Procedure Act provides: “To the extent necessary to decision

and when presented, the reviewing court shall . . . hold unlawful and set aside agency

action” where, as here, that action exceeds the agency’s statutory authority. Id.

§ 706(2)(C). Without question, the eviction moratorium constitutes an agency action

under the Act. See id. §§ 551(13) (defining “agency action” to include “the whole or a

part of an agency . . . order”) & 701(b)(2).

Without more, the statutory text directing a reviewing court to “hold unlawful

and set aside agency action” does not directly resolve the parties’ disagreement over

the scope of the remedy. To the contrary, it begs the question as to whom the agency

action shall be set aside—only the parties, all affected by the agency action, or some

group in between, perhaps one limited by the geographic limits of the Court’s

jurisdiction. The broader structure of the statute does not provide much guidance on

the issue either.

II.B.1.a. Section 702

Chapter 7 of Title 5 of the United States Code governs judicial review of agency

action. Section 702 provides a general right of review and authorizes entry of

judgment against the United States (and the officers at issue). 5 U.S.C. § 702. But

“[n]othing herein (1) affects other limitations on judicial review or the power or duty

of the court to . . . deny relief on any other appropriate legal or equitable ground[.]”

Id.

The definition of “relief” sheds some light on the question. Under the Act, it

means:

the whole or a part of an agency—

(A) grant of money, assistance, license, authority, exemption,

exception, privilege, or remedy;

(B) recognition of a claim, right, immunity, privilege, exemption, or

exception; or

(C) taking of other action on the application or petition of, and

beneficial to, a person[.]

5 U.S.C. § 551(11). Although defining relief to include “the whole” of an agency action

implies a broad, even universal, scope for a remedy, the specific subsections of the

statute speak in more limited terms to actions or matters specific to a particular

person or party. Indeed, the catch-all of subsection (C) goes so far as to mention “a

person” specifically, suggesting a more limited scope than the potential sweep of the

introductory language “the whole . . . of an agency” action. Overall, Section 702

disclaims limiting judicial review and the scope of equitable relief. Therefore, those

limits must come from other sources, to the extent there are any.

II.B.1.b. Section 703

On the surface, Section 703, titled “Form and venue of proceeding,” appears to

provide for the issuance of declaratory judgments, writs, or injunctions in review of

an agency action:

The form of proceeding for judicial review is the special statutory review

proceeding relevant to the subject matter in a court specified by statute

or, in the absence of inadequacy thereof, any applicable form of legal

action, including actions for declaratory judgments or writs of

prohibitory or mandatory injunction or habeas corpus, in a court of

competent jurisdiction. If no special statutory review proceeding is

applicable, the action for judicial review may be brought against the

United States, the agency by its official title, or the appropriate officer.

Except to the extent that prior, adequate, and exclusive opportunity for

judicial review is provided by law, agency action is subject to judicial

review in civil or criminal proceedings for judicial enforcement.

5 U.S.C. § 703. But here the form of legal action refers not to the remedies available

to a reviewing court. Instead, that language loosely parallels the language in Rule 2

of the Federal Rules of Civil Procedure, which effectively abolishes distinctions

between law and equity in favor “one form of action—the civil action.” Rather than

provide remedies, Section 703 points the way into court for a person seeking review

of agency action using one of the forms provided in the statute (a declaratory

judgment or a writ, for example) or, alternatively, a special statutory proceeding if

available.

Consistent with its title, this section also provides that Congress may create a

different mechanism for judicial review than the general procedure provided in the

Administrative Procedure Act, in which case that special statutory review proceeding

controls. This special statutory review provision may, for example, establish a

particular or exclusive venue for challenges to a selected class of agency actions. See,

e.g., 28 U.S.C. § 2342. But such a provision does not alter the remedial powers of

other courts reviewing agency actions that fall outside the set of suits picked out by a

special statutory review provision, as is the case here.

II.B.1.c. Section 704 and Section 705

These provisions address, respectively, the timing of a challenge to agency

action and provisional relief pending entry of a final judgment. While the former

(Section 704) identifies when agency action becomes final and reviewable, the latter

(Section 705) allows a reviewing court to preserve the status quo or prevent

irreparable injury pending conclusion of the proceedings. In the title of Section 705,

the term “relief” appears again. 5 U.S.C. § 705. Under this provision, a reviewing

court “may issue all necessary and appropriate process to postpone the effective date

of an agency action or to preserve status or rights pending conclusion of the review

proceedings.” Id.

Again, this statutory text points in different directions. Postponing the

effective date of agency action under Section 705 suggests a universal reach for

judicial action. In many cases, taking such a step would affect more than just the

parties before the court. At the same time, preserving “status or rights” under

Section 705 tailors provisional relief to those before the court specifically challenging

agency action.

II.B.1.d. Section 706

Finally, Section 706, titled “Scope of review,” closes out the provisions of the

Administrative Procedure Act addressing judicial review. This provision lies at the

center of the present motion, and the Court already set forth its relevant language.

Neither the Act’s text nor its structure provides a definitive answer to the question of

how far setting aside agency action extends.

II.B.2. History

By the time Congress enacted the Administrative Procedure Act in 1946, the

Supreme Court had granted equitable relief (injunctive or otherwise) that applied

beyond the parties to a case in a handful of relevant suits at best. In Lewis Publishing

Co. v. Morgan, 229 U.S. 288, 316 (1913), and Journal of Commerce & Commercial

Bulletin v. Burleson, 229 U.S. 600, 600 (1913) (per curiam)), newspaper publishers

challenged a statute conditioning second-class postal benefits on the disclosure of

certain information. Pending a final ruling in the case, the Supreme Court enjoined

enforcement of the statute against the plaintiffs and other newspaper publishers as

well. Burleson, 229 U.S. at 600. But the issue arose in a somewhat unusual

procedural posture because the federal government had agreed not to enforce the

statute, and the plaintiffs sought the injunction pending appeal only when the federal

officials reneged. Id.

In other cases in the same general era, the Supreme Court affirmed relief that

extended beyond the parties to the dispute. For example, in Hill v. Wallace, 259 U.S.

44, 72 (1922), the Supreme Court affirmed an injunction against a federal

agricultural statute ruled unconstitutional. During the pendency of the appeal, the

Supreme Court gave all those trading on the Chicago Board of Trade, not just the

plaintiffs, the benefit of preliminary relief, Hill v. Wallace, 257 U.S. 310, 310–11

(1921), before enjoining the statute to prevent a multiplicity of suits, Hill, 259 U.S.

at 62. And in United States v. Baltimore & Ohio Railroad Co., 293 U.S. 454 (1935),

twenty railroads challenged a federal regulation that required the use of certain

equipment on steam locomotives. In the Northern District of Ohio, a three-judge

court vacated the regulation at issue and enjoined its enforcement against all

railroads, not just the plaintiffs. Baltimore & Ohio R.R. Co., 5 F. Supp. 929, 930 (N.D.

Ohio 1933) (per curiam). The Supreme Court affirmed. 293 U.S. at 463–64.

Plaintiffs point to one case in particular to bolster their argument. They rely

on Columbia Broadcasting System v. United States, 316 U.S. 407, 418–19, 425 (1942),

where the Supreme Court determined that broadcasters could challenge regulations

that prohibited certain kinds of affiliation agreements. In doing so, the Supreme

Court acknowledged that the regulations at issue affected all broadcasters, many of

whom were not parties to the action and who conformed their conduct to the agency’s

rules. Id. at 418. But the Supreme Court did not expressly speak to the power of a

favorable judgment directly to set aside agency action as to those non-parties, even if

they benefitted indirectly from such a result. Id. at 418–19.

Additionally, Plaintiffs point to two statutes authorizing lawsuits to set aside

orders certain agencies adopted. See Urgent Deficiencies Act of 1913, Pub. L.

No. 63-32, 32 Stat. 208, 219 (1913); Communications Act of 1934, Pub. L. No. 73-416,

48 Stat. 1064, 1093 (1934). Such special statutory proceedings, entirely permissible

under Section 703, have limited application in a context outside their respective

settings.

Based on these precedents and statutory examples, Plaintiffs argue that

Congress incorporated into the Administrative Procedure Act broad power for a court

to set aside agency action beyond the parties to an action. Like the statutory text and

structure, in the Court’s view, the history against which Congress legislated is

equivocal. On the one hand, it suggests that Congress knew courts at times exercised

broad powers that extended beyond the parties to a particular dispute where agencies

overstepped their bounds. On the other hand, these particular cases arose in

circumstances involving fairly discrete industries or a limited number of potential

plaintiffs. They also came in challenges to rules and regulations far removed from

those involving more sweeping regulatory actions such as the eviction moratorium.

Reliance on cases such as these tends to look at the question from the top

down—that is, whether the Supreme Court may fashion (or approve) a remedy that

goes beyond the parties.1 In the matter at hand, however, the question in the first

instance involves the scope of the judicial power of a district court. More immediately,

these older cases arose in a qualitatively different moment in the development and

functioning of the administrative state. Although Congress may have taken some

lessons from the experience of judicial review of agency action when it enacted the

Administrative Procedure Act, translating those historical experiences through text

that does not directly address the issue fails to provide a clear answer to the scope of

the remedy available under Section 706 on the facts and circumstances of this case.

II.B.3. Precedent

In the face of this unclear statutory language, structure, and history, Plaintiffs

rely on a more recent pronouncement of the Supreme Court to support their position

that vacatur of the eviction moratorium applies more broadly.

II.B.3.a. Supreme Court

In Lujan v. National Wildlife Federation, 497 U.S. 871, 900 (1990) (5-4

decision), Justice Blackmun dissented from the majority’s determination that the

plaintiff lacked standing to challenge 1,250 land-use designations the Bureau of Land

1 In cases where a lower court granted broader relief, it was appropriate to do

so because, for example, the regulation in controversy concerned non-parties such as

those doing business at the Chicago Board of Trade that still fell within the lower

court’s territorial jurisdiction. See Hill, 259 U.S. at 72. The three-judge district court

in Baltimore & Ohio Railroad Co. stands as a notable exception. But such a panel

provided something of a procedural check in the wake of Ex parte Young that has

since fallen into far less frequent use.

Management made. In the course of his dissent, Justice Blackmun agreed with the

majority’s discussion of the type of relief that might be available to the plaintiffs if

they had standing. In certain circumstances, the dissent explained, a single plaintiff

may obtain relief that extends beyond the parties before the court. In the view of

Justice Blackmun and the three other Justices who joined his dissent, invalidation of

an agency action of broad applicability goes beyond the particular parties to the

dispute:

The Administrative Procedure Act permits suit to be brought by any

person “adversely affected or aggrieved by agency action.” 5

U.S.C. § 702. In some cases the “agency action” will consist of a rule of

broad applicability; and if the plaintiff prevails, the result is that the

rule is invalidated, not simply that the court forbids its application to a

particular individual. Under these circumstances a single plaintiff, so

long as he is injured by the rule, may obtain “programmatic” relief that

affects the rights of parties not before the court. On the other hand, if a

generally lawful policy is applied in an illegal manner on a particular

occasion, one who is injured is not thereby entitled to challenge other

applications of the rule.

Id. at 913 (Blackmun, J., dissenting).

Because Justice Blackmun characterized his dissent as agreeing with the

majority on the scope of relief available under the Administrative Procedure Act,

Plaintiffs rely on this language—as do various courts—to uphold the practice of

nationwide vacatur of administrative action in an appropriate case. But the broader

context and discussion is not so clear. This view relies on a single footnote in the

majority’s opinion spelling out that a person with standing could challenge the

program at issue “and the entire ‘land withdrawal review program,’ insofar as the

content of that particular action is concerned, would thereby be affected.” Id. at 890

n.2 (emphasis added).

But reading this footnote expansively overlooks the context and the limitation

the majority wrote into its dictum. In context, the plaintiffs in Lujan sought to

challenge a series of agency decisions they argued constituted a complete program

(or, in the language of the statute, an agency action). So, the word “entire” in the

footnote refers not to a facial challenge leading to nationwide vacatur, but to how in

theory the plaintiffs in Lujan could challenge all of the administrative land-use

designations with which they took issue. It also ignores that the hypothetical

challenge the majority describes still turns on the “the content of that particular

action.” Put another way, the Supreme Court in Lujan was concerned with what sort

of agency actions Section 704 subjects to review, not the scope of the remedy available

under Section 706.

Additionally, the majority opinion makes plain that it did not contemplate the

sort of global relief the dissent outlines, at least as a routine matter. For example,

the majority speaks of a controversy of “manageable proportions” that depends on

“some concrete action applying the regulation to the claimant’s situation . . . .” Id. at

891. Further, the majority conceives of a “case-by-case approach” that would result

in more modest challenges to administrative action. Id. at 894. Even where Congress

provides for judicial review at a higher level of generality, courts will intervene only

to avoid an unlawful result from a regulation. Id. “Such an intervention may

ultimately have the effect of requiring a regulation, a series of regulations, or even a

whole ‘program’ to be revised by the agency . . . .” Id. In this last category the majority

identifies, the judiciary does not have the last word—the agency does.

Only in this very narrow sense do the majority and dissent in Lujan agree

(albeit in dicta), and only in the most limited of circumstances with proper assurances

that courts adhere to their proper role under Article III.

II.B.3.b. Circuit Courts

Beyond this discussion in Lujan, the Supreme Court has yet to address

definitively—one way or the other—the issue of the scope of relief where a court sets

aside agency action as beyond the power Congress delegated to the agency. Lower

courts have, appropriately and of necessity, stepped into that void.

Notwithstanding the broader context of the discussion between the majority

and the dissent in Lujan, some courts rely on the dissent’s agreement with the

majority to hold that, “when a reviewing court determines that agency regulations

are unlawful, the ordinary result is that the rules are vacated—not that their

application to the individual petitioners is proscribed.” National Mining Ass’n v.

United States Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (cleaned

up); see also Empire Health Found. for Valley Hosp. Med. Ctr. v. Azar, 958 F.3d 873,

886 (9th Cir. 2020) (relying on National Mining to conclude that universal vacatur is

the “ordinary result when an agency action is found unlawful”).

Recent cases tend to rely on National Mining for this proposition. For example,

earlier this year the Ninth Circuit interpreted Section 706 as extending the remedy

for unlawful agency action nationwide. In East Bay Sanctuary Covenant v. Garland,

994 F.3d 962, 987 (9th Cir. 2021), the court noted that the statute “does not tell a

circuit court to ‘set aside’ unlawful agency action only within the geographic

boundaries of that circuit. Vacatur of an agency rule prevents its application to all

those who would otherwise be subject to its operation.” Ultimately, this view traces

back to National Mining. East Bay, 994 F.3d at 987 (citing, among other cases,

United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019),

which relies on National Mining).

National Mining, in turn, relied on Harmon v. Thornburgh, 878 F.2d 484, 494

(D.C. Cir. 1989). Harmon made a slightly different point: “When a court finds that

an agency regulation is invalid in substantial part, and that the invalid portion

cannot be severed from the rest of the rule, its typical response is to vacate the rule

and remand to the agency.” Id. (footnotes omitted). This result keeps with the

fundamental principle that the agency has responsibility for fashioning policy in the

first instance, not the courts. Id. In fairness, however, that policy—and the remand

specifically contemplated in Harmon—applies where an agency has discretion to

determine how to correct a legal error. Id. at n.18 (quoting Global Van Lines, Inc. v.

ICC, 804 F.2d 1293, 1305 n.95 (D.C. Cir. 1986)). Defendants here have not suggested

that they have any interest in correcting their legal error of issuing orders that exceed

the scope of the statutory authority Congress gave them, and repeated extension of

the order shows they likely will not. Nonetheless, they conceivably could do so.

Whether they can and act consistent with the current state of the science presents a

different question on which the Court expresses no opinion.

In addition to relying on National Mining or cases that do, the Ninth Circuit

has also affirmed broad relief, effectively nationwide injunctive relief. See Bresgal v.

Brock, 843 F.2d 1163, 1170 (9th Cir. 1987). In Bresgal, the appellate court

determined that the district court did not abuse its discretion by ordering relief that

would have the effect of extending beyond the parties to the case. Specifically, the

injunction at issue directed the Secretary of the Department of Labor to apply the

Farm Labor Contractor Registration Act to commercial forestry workers. In doing so,

the Bresgal Court went on to note that an injunction can direct the secretary of the

agency, who is a party to litigation, to take certain action even if that action affects

those who are not parties. Id. at 1170. Doing so, however, is appropriate only where

“such breadth is necessary to give prevailing parties the relief to which they

are entitled.” Id. at 1170–71 (citations omitted). This analysis came in discussion of

Califano v. Yamasaki, 442 U.S. 682, 702–03 (1979), about the proper reach of

remedies in a class action. In this respect, Bresgal owes more to the due-process

considerations underlying Califano than the scope of judicial review under the

Administrative Procedure Act.

Unlike the Ninth and D.C. Circuits, the Sixth Circuit is not among those that

have adopted a rule like National Mining or otherwise provided a precedential

interpretation of Section 706.2

2 Some authorities cite Mason General Hospital v. Secretary of Department of

Health & Human Services, 809 F.2d 1220, 1231 (6th Cir. 1987), to claim otherwise.

But the Medicare reimbursement rule in dispute there, the issue of its retroactivity,

and the relief ultimately ordered offer little guidance beyond its specific context and

have little bearing on the issue before the Court in this case.

II.B.4. Analysis

For all the debate and lack of clarity in the law the foregoing discussion reveals,

a leading treatise on administrative law has little doubt on the proper scope of judicial

review under the Administrative Procedure Act. It flatly declares: “There is no bar

to class-wide and nationwide relief where appropriate.” Charles H. Koch, Jr. and

Richard Murphy, Administrative Law and Practice § 8.31 (Feb. 2021 update)

(footnotes omitted).

The Court has far less certainty than that about the correct interpretation of

Section 706. On the one hand, reading the statutory text as extending a remedy to

all persons, even those who are not parties, where, as here, an agency exceeds

congressional authorization offers an elegantly simple solution to a thorny problem.

If an agency exceeds it authority, its action is unlawful regardless of which parties

are formally before the court. Indeed, the CDC’s action applies nationwide, as does

Section 361 of the Public Health Service Act. As one district court noted: “the Court

cannot, in an intellectually honest manner, limit vacatur of the rules to the state of

New Mexico. The Court does not know how a court vacates a rule only as to one state,

one district, or one party.” New Mexico Health Connections v. United States Dep’t of

Health & Hum. Servs., 340 F. Supp. 3d 1112, 1183 (D.N.M. 2018). If an order of this

type does not merit nationwide vacatur, it is difficult to conceive of one that does.

Moreover, the agency’s orders here are not the subject of a challenge as applied

to Plaintiffs. On the facts and circumstances presented, there is no particular or

concrete action directed at these Plaintiffs for the Court to set aside. Their injury

arises from the CDC’s actions in excess of the authority Congress gave it. In this

regard, this case resembles the historical cases where non-parties incidentally benefit

from a broader remedy that is appropriate and tailored to the particular harm.

Additionally, the eviction moratorium has a particular feature that mitigates any

potential overbreadth of nationwide vacatur—namely, a landlord who agrees with

the policy embodied in the CDC’s orders can simply decline to evict a tenant. Finally,

as noted above, such broad relief enjoys some support in precedent, tenuous though

it may be.

On the other hand, the lack of a firm foundation for nationwide vacatur in the

language, structure, and history of the Administrative Procedure Act is striking.

Some textual clues suggest that judicial review of agency action is more

circumscribed, consistent with the aim of leaving the agency as the central actor when

crafting administrative policy. See, e.g., 5 U.S.C. §§ 551(11) & 702. Such a reading

leaves the agency at the center of policymaking, consistent with fundamental

principles of administrative law. Further, the principle of standing at the heart of

Article III and its discussion in Lujan, among other cases, serves as a reminder that

the judicial power remains fundamentally limited, with few, circumscribed

exceptions, to cases and controversies between particular litigants. In this way,

Article III promotes the separation of powers by limiting the exercise of the judicial

power so that the federal courts do not become a super-legislature (or, in this case, a

super-agency). Further, the recent increase in the use of nationwide or universal

remedies suggests a break from historical practices and understandings about the

proper role of the judiciary. In an understandable sense, the increasingly expansive

actions agencies themselves undertake prompt such judicial remedies in response.

But two constitutional wrongs do not make a right.

Based on the lack of clear answer in the language, structure, and history of the

Administrative Procedure Act and the absence of clear precedent, the Court is not

prepared to extend the remedy as far as Plaintiffs request. They may well be correct

that the Act and Article III permit or even require such a result. If so, reaching that

conclusion will require greater analysis of the judicial power under Article III, which

the parties have not fully developed. That task also more properly falls to the Sixth

Circuit or the Supreme Court. See 28 U.S.C. § 2112(a)(3) (creating a procedure to

consolidate multiple petitions for review in appellate courts, suggesting a broader

remedial scope for circuits and implying a more limited role for district courts). And

given the state of the law, one can only hope that Congress and the Supreme Court

will provide some much-needed clarity and guidance.

Finally, Rule 57 makes clear that the Administrative Procedure Act does not

preclude declaratory relief. Fed. R. Civ. P. 57 (“[A]nother adequate remedy does not

preclude a declaratory judgment that is otherwise appropriate.”). Therefore, reading

Section 706 in tandem with Rule 57 defines the bounds of the vacatur in this case.

CONCLUSION

In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 589 (1952), the

Supreme Court famously upheld an injunction restraining the President from seizing

steel mills to prevent a nationwide strike during the Korean War. Generally

forgotten as the case has entered our constitutional consciousness are the particular

facts. President Truman issued an executive order directing his Secretary of

Commerce to seize and operate “all or such of the plants, facilities, and other

property” of the companies identified on a list consisting of basically all steel

companies in the nation. Directing the Secretary of Commerce to Take Possession

and Operate the Plants and Facilities of Certain Steel Companies, Executive Order

10340, 17 Fed. Reg. 3139, 3141 (Apr. 10, 1952). When the Secretary carried out the

order by taking possession of most companies on the list, see 17 Fed. Reg. 3242, 3243

(Apr. 12, 1952), seven companies filed suit, and the district court granted a

preliminary injunction, see Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp.

569, 571 (1952). On appeal, the Supreme Court affirmed the injunction, concluding

that the President acted without statutory or constitutional authority. 343 U.S. at

585.

Of relevance here, in affirming the injunction, the Supreme Court did not set

aside or vacate the executive order at issue in its entirety—that is, on a national or

universal basis. Instead, the injunction restrained executive action as applied to the

companies which filed suit—and not even all of them. 103 F. Supp. at 577. Following

the Supreme Court’s ruling, President Truman respected the decision, abandoned his

order, and immediately returned all the businesses seized—not just those that had

prevailed in the litigation. See Steel Strike Laid to Federal Action, N.Y. Times, Sept.

25, 1952, at 16. In other words, not long after enactment of the Administrative

Procedure Act, the judiciary fulfilled its constitutional role of saying what the law is

with respect to the parties before the courts and stopped short of ordering a broader

remedy. Certainly, the analogy is not perfect. But as nationwide injunctions and

other forms of universal relief become more common, it is easy to lose sight of this

historical example.

For all the foregoing reasons, the Court will enter an amended judgment

clarifying its earlier ruling. Specifically, the Court concludes that the declaratory

judgment it entered binds the parties and their members, wherever they may be.

SO ORDERED.

Dated: June 3, 2021

J. Philip Calabrese

United States District Judge

Northern District of Ohio

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