Amicus Curiae Brief — Little Sisters of the Poor Saints Peter and Paul Home, Petitioner v. Pennsylvania, et al.
Supreme Court briefApr 8, 2020
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No. 19-454
IN THE
Supreme Court of the United States
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL.,
v.
Petitioners,
COMMONWEALTH OF PENNSYLVANIA, ET AL.,
Respondents.
On Writ of Certiorari to the United States Court of
Appeals for the Third Circuit
BRIEF OF AMICUS CURIAE PUBLIC CITIZEN
IN SUPPORT OF RESPONDENTS
NANDAN M. JOSHI
Counsel of Record
SCOTT L. NELSON
ALLISON M. ZIEVE
PUBLIC CITIZEN
LITIGATION GROUP
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
njoshi@citizen.org
Attorneys for Amicus Curiae
April 2020
i
TABLE OF CONTENTS
Table of Authorities .................................................... ii
Interest of Amicus Curiae .......................................... 1
Summary of Argument ............................................... 2
Argument .................................................................... 6
I.
The Court should not permit agencies to
circumvent notice-and-comment
rulemaking procedures through
improperly issued interim rules. ......................... 6
II. Courts engaged in pre-enforcement
review of agency rulemaking have
authority to grant relief with nationwide
effect. ................................................................... 20
Conclusion ................................................................. 30
ii
TABLE OF AUTHORITIES
Cases
Abbott Laboratories v. Gardner,
387 U.S. 136 (1967) ............................................... 28
Advocates for Highway & Auto Safety
v. Federal Highway Administration,
28 F.3d 1288 (D.C. Cir. 1994) ......................... 12, 13
American Federation of Government Employees
v. Block,
655 F.2d 1153 (D.C. Cir. 1981) .............................. 7
Blue Chip Stamps v. Manor Drug Stores,
421 U.S. 723 (1975) ............................................... 26
Califano v. Yamasaki,
442 U.S. 682 (1979) ............................................... 20
California v. Azar,
911 F.3d 558 (9th Cir. 2018),
cert. denied sub nom. Little Sisters of the
Poor Jeanne Jugan Residence v. California,
139 S. Ct. 2716 (2019) ............................................. 7
Chesapeake Climate Action Network v. EPA,
952 F.3d 310 (D.C. Cir. 2020) ............................... 24
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) ................................. 6, 9, 13, 20
Cooper v. Harris,
137 S. Ct. 1455 (2017) ........................................... 26
Fortyune v. American Multi-Cinema, Inc.,
364 F.3d 1075 (9th Cir. 2004) ............................... 27
iii
Guedes v. Bureau of Alcohol, Tobacco,
Firearms & Explosives,
920 F.3d 1 (D.C. Cir. 2019),
cert. denied, 140 S. Ct. 789 (2020) ........................ 12
Levesque v. Block,
723 F.2d 175 (1st Cir. 1983).................................. 12
Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158 (2007) ............................................... 11
Mid-Texas Electric Cooperative, Inc. v. FERC,
822 F.2d 1123 (D.C. Cir. 1987) ............................... 8
National Ass’n of Manufacturers v.
Department of Defense,
138 S. Ct. 617 (2018) ....................................... 25, 26
National Tour Brokers Ass’n v. United States,
591 F.2d 896 (D.C. Cir. 1978) ........................... 9, 11
Natural Resources Defense Council v. National
Highway Traffic Safety Administration,
894 F.3d 95 (2d Cir. 2018)....................................... 7
North Carolina Growers’ Ass’n v. United Farm
Workers,
702 F.3d 755 (4th Cir. 2012) ................................... 8
Norton v. Southern Utah Wilderness Alliance,
542 U.S. 55 (2004) ................................................. 22
PDR Network, LLC v. Carlton & Harris
Chiropractic, Inc.,
139 S. Ct. 2051 (2019) ..................................... 25, 28
Perez v. Mortgage Bankers Ass’n,
575 U.S. 92 (2015) ................................................... 6
Safari Club International v. Zinke,
878 F.3d 316 (D.C. Cir. 2017) ............................... 17
iv
Sharon Steel Corp. v. EPA,
597 F.2d 377 (3d Cir. 1979)................................... 23
Sorenson Communications Inc. v. FCC,
755 F.3d 702 (D.C. Cir. 2014) ................................. 7
U.S. Steel Corp. v. EPA,
595 F.2d 207 (5th Cir. 1979) ....................... 9, 10, 13
United States v. Dean,
604 F.3d 1275 (11th Cir. 2010) ............................. 13
United States v. Johnson,
632 F.3d 912 (5th Cir. 2011) ................................. 13
United States v. Reynolds,
710 F.3d 498 (3d Cir. 2013)............................. 13, 16
United Steel v. Mine Safety & Health
Administration,
925 F.3d 1279 (D.C. Cir. 2019) ................. 22, 23, 28
Winter v. Natural Resources Defense
Council, Inc.,
555 U.S. 7 (2008) ................................................... 21
Statutes
5 U.S.C. § 552(a)(1)(D) ................................................ 6
5 U.S.C. § 553(b) ............................................... passim
5 U.S.C. § 553(c) .......................................... 6, 8, 13, 19
5 U.S.C. § 559 ............................................................ 17
5 U.S.C. § 702 ............................................................ 22
5 U.S.C. § 705 ...................................................... 22, 27
5 U.S.C. § 706 ...................................................... 13, 22
5 U.S.C. § 706(1) ....................................................... 22
5 U.S.C. § 706(2) ..................................... 22, 23, 27, 28
v
5 U.S.C. § 706(2)(D) .................................................... 9
28 U.S.C. § 2112 ........................................................ 25
28 U.S.C. § 2342 ........................................................ 25
28 U.S.C. § 2349 ........................................................ 25
33 U.S.C. § 1369(b)(1) ............................................... 25
42 U.S.C. § 7607(b)(1) ............................................... 25
44 U.S.C. § 1507 .......................................................... 6
Regulations
1 C.F.R. § 5.9(b) .......................................................... 7
1 C.F.R. § 5.9(c) ........................................................... 7
1 C.F.R. § 18.2(a)......................................................... 7
1 C.F.R. § 18.12(a)....................................................... 7
Other Authorities
Administrative Conference of the United
States, Adoption of Recommendations,
60 Fed. Reg. 43,108 (Aug. 18, 1995) ..... 8, 11, 14, 18
Administrative Procedure Act, Legislative
History, 79th Cong. 1944–46 .......................... 12, 15
Black’s Law Dictionary (11th ed. 2019) ................... 22
Final Report of the Attorney General’s
Committee on Administrative Procedure
(1941) ..................................................................... 12
H.R. Rep. No. 79-1980 (1946) ..................................... 9
Kristin E. Hickman & Mark Thomson, Open
Minds and Harmless Errors: Judicial Review
of Postpromulgation Notice and Comment,
101 Cornell L. Rev. 261 (2016) ........... 10, 11, 12, 15
vi
Nicholas Bagley, The Puzzling Presumption of
Reviewability,
127 Harv. L. Rev. 1285 (2014) .............................. 28
Office of the Federal Register, National Archives
and Records Administration, Document
Drafting Handbook (revised Aug. 9, 2019)......... 8, 9
Roni Elias, The Legislative History of the
Administrative Procedure Act,
27 Fordham Envtl. L. Rev. 207 (2015) ................. 10
U.S. Government Accountability Office, GAO13-21, Federal Rulemaking: Agencies Could
Take Additional Steps to Respond to Public
Comments (2012) .................................................... 8
INTEREST OF AMICUS CURIAE 1
Public Citizen is a consumer advocacy organization
that appears on behalf of its members and supporters
before Congress, administrative agencies, and the
courts. Public Citizen often participates in notice-andcomment rulemaking proceedings as a commenter,
and is often involved in litigation either challenging or
defending agency actions under the Administrative
Procedure Act (APA). This amicus brief focuses on the
second and third questions presented in No. 19-454,
which involve issues of administrative law that affect
Public Citizen’s work as a commenter in agency rulemakings and as a litigator in APA cases in federal
court.
The second question in No. 19-454 concerns a practice that some agencies have adopted of promulgating
legislative rules by issuing so-called “interim final
rules” alongside a request for comment. Public Citizen
is concerned that this practice, if left unchecked, will
diminish agencies’ incentive to follow the notice-andcomment process required by the APA. In this brief,
Public Citizen proposes a standard to address this concern that preserves agency flexibility to issue interim
final rules where the agency legitimately has good
cause for dispensing with notice-and-comment procedures.
The third question in No. 19-454 concerns the
power of a court reviewing a facial challenge to an
agency rule to enjoin the agency from implementing
––––––––––––––––––––––––
1 This brief was not written in whole or in part by counsel for
a party. No one other than amicus curiae or its counsel made a
monetary contribution to the preparation or submission of this
brief. Counsel for the parties have filed blanket consents to the
filing of amicus briefs.
2
the rule under review. Public Citizen believes that a
court’s power to issue orders with nationwide effect,
including orders to stay, set aside, or enjoin enforcement of agency rules, is firmly founded in the APA.
The government’s contrary position would disrupt the
orderly administration of the federal regulatory system.
SUMMARY OF ARGUMENT
I. Under the APA, an agency may adopt substantive rules that have the force and effect of law in two
ways. First, the agency may adopt such “legislative”
rules after publishing a notice of proposed rulemaking
providing interested parties an opportunity to comment on the proposal, and considering and responding
to those comments when issuing the final rule. Second, the agency may adopt legislative rules that have
immediate effect if it has “good cause” to dispense with
notice-and-comment procedures. Courts have interpreted the APA’s good-cause exception narrowly to
prevent agencies from circumventing the notice-andcomment process.
This case concerns the standard that courts should
apply when an agency invokes the good-cause exception to promulgate an interim final rule, requests comment on the interim rule, and then promulgates a final rule based on the administrative record thus created. This practice—in which the interim final rule
plays the role of a notice of proposed rulemaking—enables an agency to promulgate legislative rules without following the sequence of procedures required by
the APA. A standard of judicial review that places no
meaningful constraint on the use of interim final rules
in this manner would upset the balance that Congress
struck in the APA when it established the notice-and-
3
comment process as the principal method through
which agencies should promulgate legislative rules.
Lower courts have adopted disparate approaches
to address this concern. Some courts ask whether, despite the failure to follow the notice-and-comment process, the agency kept an “open mind” in evaluating the
administrative record generated by the post-promulgation comment period. Other courts ask whether the
agency committed harmless error. These standards,
however, are not well-suited to address the structural
problem occasioned by incentivizing agencies to bypass notice-and-comment procedures. Instead, the
correct standard should consider the objective circumstances surrounding the issuance of the interim final
rule to assess whether the agency improperly circumvented the notice-and-comment process.
That inquiry should principally examine whether
the agency correctly invoked the good-cause exception
to issue the interim final rule. When an agency lawfully invokes good cause, a request for comment is less
likely to have been motivated by a desire to circumvent notice-and-comment procedures. By contrast,
when an agency improperly invokes the good-cause
exception, permitting an agency to use the interim final rule as the equivalent of a notice of proposed rulemaking creates an avenue for the agency to circumvent the standard rulemaking process. To mitigate the
risk of circumvention, a court should examine factors
such as the agency’s rationale for invoking the goodcause exception and the content and structure of the
preamble to the interim final rule to determine
whether the agency’s failure to issue a separate notice
of proposed rulemaking requires invalidation of the final rules under review.
4
As applied here, this standard supports the court
of appeals’ conclusion that the rules at issue violated
the APA. As the court found, the agencies lacked a
sound basis for invoking the good-cause exception.
Moreover, in content and structure, the interim final
rule was not an adequate substitute for a notice of proposed rulemaking. The preamble to the interim final
rule does not read like a notice of proposed rulemaking; it does not contain, for example, a section devoted
to seeking comment on the substance of the proposal.
If the interim final rules in this case satisfied the
APA’s prior-notice requirement, it is difficult to envision an interim final rule that would not. Accepting a
final rule resulting from such a flawed process would
render the APA’s bedrock notice-and-comment procedures effectively unenforceable.
II. The government’s argument that courts reviewing facial challenges to agency rules may not grant relief with nationwide effect conflicts with basic principles of administrative law.
As an initial matter, the Court should decline the
government’s invitation to address broad questions
about the propriety of nationwide injunctions in the
context of this case. The courts below enjoined enforcement of the rules under review on a nationwide basis
because they concluded that a narrower injunction
would not be effective in affording respondents complete relief. The government acknowledges that an injunction can be as broad as necessary to afford a plaintiff complete relief, and it proposes no alternative injunction that would provide respondents complete relief from their injury. Those points offer a sufficient
basis for affirming the injunction in this case.
5
If the Court examines the propriety of nationwide
relief in APA cases generally, it should uphold reviewing courts’ authority to grant such relief in the context
of a facial challenge to agency action. The APA authorizes a reviewing court to stay or set aside an agency
rule in certain circumstances, and to compel agency
action in others. Such relief will ordinarily have nationwide effect, unless the court affirmatively exercises its equitable discretion to grant relief that is narrower in scope. These default remedies help to maintain the uniform application of agency rules and, thus,
to avoid uncertainty among and disparate application
to the regulated industry and the public. The government’s position that courts should award relief that
benefits only the parties to the litigation would, by
contrast, raise knotty questions about the identity of
the parties entitled to benefit from a court’s injunction, and would result in a patchwork regulatory system in which litigants and non-litigants would be subject to different regulatory treatment.
The government’s position also undermines the efficacy of facial challenges as a tool to hold agencies accountable for their actions. Judicial review of agency
rules has become an essential tool because of its value
for promoting agency accountability. If the government were to prevail on this point, however, an agency
would have discretion to decide whether to modify the
regulatory regime to conform to a reviewing court’s
judgment or, instead, to press forward with the
agency’s preferred course of action by applying a challenged rule to non-litigants, notwithstanding that the
court had already concluded that the rule was unlawful. Departing from the default remedies authorized
by the APA would thus remove a particularly important check on the power of the modern
6
administrative state. This Court should reject the government’s invitation to do so.
ARGUMENT
I.
The Court should not permit agencies to
circumvent notice-and-comment rulemaking procedures through improperly issued
interim rules.
A. The APA provides two avenues through which
an agency may promulgate “legislative rules”—a term
that this Court has used to refer to substantive regulations that “have the ‘force and effect of law.’” Perez
v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302–03
(1979)). First, an agency that seeks to promulgate a
legislative rule normally “must issue a ‘general notice
of proposed rule making,’” “‘give interested persons an
opportunity to participate in the rule making,’” “consider and respond to significant comments received
during the period for public comment,” and include a
“‘concise general statement of [the rule’s] basis and
purpose’” when it issues the final rule. Id. (quoting 5
U.S.C. § 553(b) & (c)). As a general matter, “regulations subject to the APA cannot be afforded the ‘force
and effect of law’ if not promulgated pursuant to the
statutory procedural minimum found in that Act.”
Chrysler Corp., 441 U.S. at 313.
The APA requires notices of proposed rulemaking
and final rules to be published in the Federal Register,
5 U.S.C. §§ 552(a)(1)(D), 553(b), which is deemed “sufficient to give notice of the contents of the document
to a person subject to or affected by it,” 44 U.S.C.
§ 1507. Each document containing a “proposed or final
rule” must include “a preamble, which will inform the
reader, who is not an expert in the subject area, of the
7
basis and purpose for the rule or proposal.” 1 C.F.R.
§ 18.12(a). The Federal Register is divided into separate sections: notices of proposed rulemaking are published in the “Proposed [R]ules” section, and final
rules in the “Rules and [R]egulations” section. 1 C.F.R.
§ 5.9(b),(c); see Office of the Fed. Register, Nat’l Archives & Records Admin., Document Drafting Handbook chs. 2.1, 3.1 (revised Aug. 9, 2019) (Federal Register Handbook). The rules of the Federal Register
prohibit “combin[ing] material that must appear under more than one category in the Federal Register”;
thus, “a document may not contain both rulemaking
and notice of proposed rulemaking material.” 1 C.F.R.
§ 18.2(a).
Second, the APA permits an agency to issue a legislative rule without notice-and-comment procedures
if the agency “for good cause finds” that those procedures “are impracticable, unnecessary, or contrary to
the public interest.” 5 U.S.C. § 553(b). If an agency improperly invokes the good-cause exception, a reviewing court may vacate the rule for failure to adhere to
notice-and-comment procedures. See, e.g., Sorenson
Commc’ns Inc. v. FCC, 755 F.3d 702, 707 & n4 (D.C.
Cir. 2014). Because Congress did not intend for the
“exception[]” to act as an “escape clause[] that may be
arbitrarily utilized at the agency’s whim,” lower courts
have held that the good-cause exception is to be “narrowly construed and only reluctantly countenanced.” Am. Fed’n of Gov’t Emp. v. Block, 655 F.2d
1153, 1156 (D.C. Cir. 1981) (internal quotation marks
omitted); see also, e.g., Nat. Res. Def. Council v. Nat’l
Highway Traffic Safety Admin., 894 F.3d 95, 113 (2d
Cir. 2018); California v. Azar, 911 F.3d 558, 575 (9th
Cir. 2018), cert. denied sub nom. Little Sisters of the
Poor Jeanne Jugan Residence v. California, 139 S. Ct.
8
2716 (2019); N.C. Growers’ Ass’n, Inc. v. United Farm
Workers, 702 F.3d 755, 767 (4th Cir. 2012).
The APA does not require an agency that properly
invokes the “good cause” exception to seek public comment on the rule after the fact. Nonetheless, some
agencies have developed a practice of invoking good
cause to adopt a rule with immediate effect and then
requesting post-promulgation comment on the rule.
See Admin. Conference of the United States, Adoption
of Recommendations, 60 Fed. Reg. 43,108, 43,111
(Aug. 18, 1995) (ACUS Rec. 95-4); U.S. Gov’t Accountability Off., GAO-13-21, Federal Rulemaking: Agencies Could Take Additional Steps to Respond to Public
Comments 3, 15–17 (2012) (GAO Report). Such postpromulgation procedures are “advantageous” because
“[p]ublic comment can provide both useful information
to the agency and enhanced public acceptance of the
rule.” ACUS Rec. 95-4, 60 Fed. Reg. at 43,112. They
also serve to protect the agency against the possibility
that a court might find good cause lacking for a permanent rule, while accepting its existence to justify a
rule that will be in force only pending completion of
notice-and-comment proceedings leading to a final
rule. See, e.g., Mid-Tex. Elec. Co-op., Inc. v. FERC, 822
F.2d 1123, 1132–33 (D.C. Cir. 1987). A rule issued
with an opportunity for post-promulgation comment is
commonly called an “interim final rule.” Id. at 43,111.
The APA does not treat “interim final rules” as a
distinct class of rules. Rather, an interim final rule is
simply one type of “rule[] adopted” pursuant 5 U.S.C.
§ 553(c) for which no “[g]eneral notice of proposed rule
making” was required under section 553(b). Interim
final rules, accordingly, are published with their preambles in the “Rules and Regulations” section of the
Federal Register, alongside rules adopted through
9
notice-and-comment rulemaking. See Federal Register Handbook ch. 3.1.
B. This case raises the question whether an interim final rule whose preamble contains a request for
post-promulgation comment can serve as a substitute
for the “[g]eneral notice of proposed rule making” required by 5 U.S.C. § 553(b). If the interim final rule
cannot serve that purpose, then any final rule adopted
after post-promulgation comment must be “set aside”
due to the agency’s failure to “observe[] … procedure
required by law.” 5 U.S.C. § 706(2)(D).
Establishing the correct standard for this situation
is critical to ensuring that the regulatory state operates within the procedural bounds established by Congress. As the Court has recognized, the APA contains
“a formula upon which opposing social and political
forces have come to rest.” Chrysler Corp., 441 U.S. at
313 (internal quotation marks omitted). “Congress
made a judgment that notions of fairness and informed administrative decisionmaking require that
agency decisions be made only after affording interested persons notice and an opportunity to comment.”
Id. at 316. Congress also charged the courts “with
maintaining the balance” by “ensuring that agencies
comply with the ‘outline of minimum essential rights
and procedures’ set out in the APA.” Id. at 313 (quoting H.R. Rep. No. 79-1980, at 16 (1946)). Consistent
with that charge, lower courts have long rejected
agencies’ arguments that they may promulgate a rule
“in inverse order from that contemplated by the APA”
by “redesignat[ing] the final rule as notice and
claim[ing] the proceeding started from there.” Nat’l
Tour Brokers Ass’n v. United States, 591 F.2d 896, 902
(D.C. Cir. 1978); see U.S. Steel Corp. v. EPA, 595 F.2d
207, 214 (5th Cir. 1979) (“Permitting the submission
10
of views after the effective date is no substitute for the
right of interested persons to make their views known
to the agency in time to influence the rule making process in a meaningful way.” (internal quotation marks
omitted)); Pet. App. 29a.
The practice of issuing an interim final rule combined with a request for comment presents a risk that
an agency will promulgate legislative rules without
adhering to the sequence of procedures set forth in the
APA. If an agency could “cure[]” its failure to adhere
to notice-and-comment procedures simply by requesting comment when promulgating a rule, the APA’s
prior-notice-and-comment requirement would be “virtually unenforceable” because an “agency that wished
to dispense with pre-promulgation notice and comment could simply do so, invite post-promulgation
comment, and republish the regulation before a reviewing court could act.” U.S. Steel Corp., 595 F.2d at
214–15. “[G]iving effect to postpromulgation rulemaking would undoubtedly provide a powerful disincentive for agencies to comply with § 553’s prepromulgation notice and comment requirements when they
seek to bind the actions of regulated parties.” Kristin
E. Hickman & Mark Thomson, Open Minds and
Harmless Errors: Judicial Review of Postpromulgation Notice and Comment, 101 Cornell L. Rev. 261, 286
(2016).
Moreover, improper use of interim final rules to initiate rulemakings undermines the APA’s objective of
“protecting the rights of individuals and enterprises
against the abuse of power by unelected officials.”
Roni A. Elias, The Legislative History of the Administrative Procedure Act, 27 Fordham Envtl. L. Rev. 207,
224 (2015). When an agency follows the standard rulemaking process, a proposed rule is “simply a
11
proposal,” signifying that the agency is “considering
the matter.” Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158, 175 (2007) (brackets removed). This process “is generally considered preferable because agencies are perceived by commenters as more likely to accept changes in a rule that has not been promulgated
as a final rule—and potential commenters are more
likely to file comments in advance of the agency’s ‘final’ determination.” ACUS Rec. 95-4, 60 Fed. Reg. at
43,111. Thus, by providing notice and an opportunity
to comment before promulgating a legislative rule, the
agency “ensure[s] that agency regulations are tested
via exposure to diverse public comment, (2) … ensure[s] fairness to affected parties, and (3) … give[s]
affected parties an opportunity to develop evidence in
the record to support their objections to the rule and
thereby enhance the quality of judicial review.” Pet.
App. 29a (internal quotation marks omitted).
By contrast, when an agency issues an interim final rule with a request for post-promulgation comment, “forces like regulatory inertia, status quo bias,
confirmation bias, and commitment bias all make it
less likely the agency will deviate from its position.”
Hickman & Thomson, supra, at 287 (footnote references omitted). Once an agency has “made a ‘final’ determination” in the form of an interim final rule, it has
“put its credibility on the line” and may “naturally
tend to be more close-minded and defensive” about the
rule. Nat’l Tour Brokers Ass’n, 591 F.2d at 902. On the
flip side, “citizens might not take seriously the opportunity to offer comments after a rule is in effect, believing that, because an agency has already committed to enforcing a particular rule, submitting comments would just be a waste of time.” Hickman &
Thomson, supra, at 288. When an agency begins a
12
rulemaking by issuing an interim final rule, it
“change[s] the question presented [in the rulemaking]
from whether [it] should [adopt the rule] to whether
[it] should depart from [the rule].” Pet. App. 31a. In
that circumstance, the quality of “[p]ublic participation in the rule-making process,” which the drafters of
the APA regarded as “essential in order to permit administrative agencies to inform themselves and to afford safeguards to private interest,” is compromised.
APA, Legislative History, 79th Cong. 1944–46 (APA
History), at 20 (internal quotation marks and ellipsis
omitted) (quoting Final Report of the Attorney General’s Comm. on Admin. Pro. 103 (1941)).
C. Lower courts have struggled with how to review
agency rulemaking proceedings initiated by an interim final rule and followed by a post-promulgation
comment period. See Hickman & Thomson, supra, at
268. Several circuits have framed their review in
terms of whether an agency, after issuing the interim
final rule, has kept an open mind. The D.C. Circuit,
for example, examines whether the agency “has kept
an ‘open mind’ throughout the subsequent comment
period.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 13 (D.C. Cir. 2019),
cert. denied, 140 S. Ct. 789 (2020); see Levesque v.
Block, 723 F.2d 175, 188 (1st Cir. 1983); Pet. App. 30a;
see also Hickman & Thomson, supra, at 294. The
“open mind” inquiry considers whether the agency has
“afforded the comments particularly searching consideration.” Advocates for Highway & Auto Safety v. Fed.
Highway Admin., 28 F.3d 1288, 1292 (D.C. Cir. 1994)
(internal quotation marks omitted). Alternatively,
other courts have considered whether the opportunity
for post-promulgation comment cured the failure to
engage in prior notice-and-comment procedure or
13
rendered it harmless. See, e.g., United States v.
Reynolds, 710 F.3d 498, 515 (3d Cir. 2013); U.S. Steel
Corp., 595 F.2d at 215; United States v. Dean, 604 F.3d
1275, 1280 (11th Cir. 2010); see also 5 U.S.C. § 706
(requiring reviewing courts to take “due account … of
the rule of prejudicial error”).
These standards are appropriate tools to use when
a court is reviewing final rules that are preceded by a
notice of proposed rulemaking that is separate from
the agency’s interim final rule. If the agency has complied with the prior notice requirement, 5 U.S.C.
§ 553(b); has kept an open mind when considering “the
relevant matter presented,” id. § 553(c); and has not
committed a prejudicial error in issuing its final rules,
the agency has complied with its procedural responsibilities, and courts may not “impose obligations not required by the APA.” Chrysler Corp., 441 U.S. at 313.
Neither the open-mind nor the harmless-error
standard, however, is ideally suited to address the
specific structural problems that arise when agencies
initiate rulemaking proceedings through an interim
final rule rather than a separate notice of proposed
rulemaking. As applied by the lower courts, the inquiry under either standard largely turns on the quality of the agency’s response to the post-promulgation
administrative record rather than the appropriateness of using the interim final rule as a starting point
for the rulemaking. See, e.g., Advocates for Highway &
Auto Safety, 28 F.3d at 1292 (applying open-mind
standard); United States v. Johnson, 632 F.3d 912, 931
(5th Cir. 2011) (“It follows that when a party’s claims
were considered, even if notice was inadequate, the
challenging party may not have been prejudiced.”).
And neither standard vindicates the interests of potential commenters who may not have received notice
14
of the proposed rulemaking when it was embedded in
an interim final rule, without a separate notice of proposed rulemaking, or who failed to comment due to a
belief that the agency’s decision was a fait accompli.
For these reasons, to mitigate agencies’ incentive
to use interim final rules to circumvent the APA’s notice-and-comment procedures, this Court should not
adopt a standard of review that focuses on how an
agency responds to the comments received on an interim final rule. Instead, the standard should look to
the objective circumstances surrounding the issuance
of the interim final rule to assess whether the agency’s
failure to publish a notice of proposed rulemaking constituted an improper attempt to bypass notice-andcomment procedures.
The threshold consideration in this inquiry should
be whether the agency properly invoked the goodcause exception when it issued the interim final rule.
If the agency lawfully issued the interim final rule,
then any associated request for comment is not likely
to have been designed to circumvent notice-and-comment procedures, but to ensure that the agency action
is not broader than is justified by the circumstances
that establish good cause for taking immediate action
and to obtain “useful information to the agency and
enhanced public acceptance of the rule.” ACUS Rec.
95-4, 60 Fed. Reg. at 43,112. Indeed, because the APA
does not expressly require an agency to seek comment
either before or after promulgating a rule under the
good-cause exception, agencies should not be discouraged from seeking comment on interim final rules, lest
they be incentivized to eschew “interim final” rules in
favor of “final rules” for which public comment is never
solicited.
15
Where, however, a reviewing court concludes that
an agency lacked good cause to dispense with noticeand-comment procedures before issuance of the rule,
the risk that the agency improperly circumvented
those procedures is heightened. An agency invoking
good cause may have acted in good faith, even if a
court subsequently disagrees with the agency’s conclusion. See APA History at 19 (stating that goodcause standard “requires agencies to act in good
faith”); see also Hickman & Thomson, supra, at 291.
But an agency may instead have invoked good cause
to force immediate compliance with an administration’s policy agenda, where no urgency was in fact present. In that situation, a standard that too easily upholds an agency’s final rule based on post-promulgation procedures effectively gives agencies a green light
to circumvent the statutory requirement that the
agency issue a “[g]eneral notice of proposed rule making” before promulgating a legislative rule. 5 U.S.C.
§ 553(b).
Accordingly, to mitigate the risk of circumvention,
a court should examine factors such as the agency’s
rationale for invoking the good-cause exception and
the content and structure of the preamble to the interim final rule to determine whether the agency’s
failure to issue a separate notice of proposed rulemaking requires invalidation of the final rule under review. With respect to the agencies’ rationale for invoking good cause, the parties here have assumed that
this Court’s review is de novo. U.S. Br. 41–42; Resp’t
16
Br. 22. 2 This Court, accordingly, could adopt a brightline standard that would invalidate any final rule that
followed an improperly promulgated interim final
rule. Such a standard would deter improper use of the
good-cause exception, but could lead to invalidation of
final rules for which an agency issued the interim final
rule in good faith, albeit erroneously. Alternatively,
the Court could set a more forgiving standard that examines whether the agency’s justification for invoking
good cause, even if erroneous when examined de novo,
was unreasonable or arbitrary. Where the agency’s rationale (and thus, the basis for proceeding through an
interim final rule rather than a notice of proposed
rulemaking) is weak, the agency would not be permitted to compound that error by treating the interim final rule as an adequate substitute for the notice of proposed rulemaking required by the APA.
The content and structure of the preamble to the
interim final rule can also reveal whether an agency
used the interim final rule to circumvent notice-andcomment procedures. If a preamble includes a separate and appropriately thorough discussion of the
agency’s proposal akin to the content typically found
in notices of proposed rulemaking (e.g., consideration
of alternatives), it is less likely that the agency sought
to use the interim final rule to circumvent section
553(b) requirements. By contrast, a preamble that
lacks such content is evidence that the agency’s decision to dispense with notice-and-comment procedures
was not made in good faith. “[A]n utter failure to
––––––––––––––––––––––––
2 The courts of appeals are divided on whether an agency’s
rationale for invoking good cause is subject to de novo or arbitrary-and-capricious review (or something in between). See Reynolds, 710 F.3d at 506–09.
17
comply with notice and comment cannot be considered
harmless if there is any uncertainty at all as to the
effect of that failure.” Safari Club Int’l v. Zinke, 878
F.3d 316, 335 (D.C. Cir. 2017) (internal quotation
marks omitted). An interim final rule that was not
supported by good cause and that lacks the substance
associated with bona fide notice of proposed rulemaking, accordingly, should not be regarded as a substitute for the type of prior notice that section 553(b) requires.
D. The objective circumstances surrounding the issuance of the rules under review in this case support
the court of appeals’ conclusion that the agencies acted
for the purpose of circumventing notice-and-comment
rulemaking. First, as the court of appeals found, Pet.
App. 23a–28a, the agencies’ justification for issuing
the interim final rule lacked merit because the statutory authority they invoked for dispensing with notice
and comment did not expressly grant them that authority, as required by 5 U.S.C. § 559. Pet. App. 24a.
The court also found that their “good cause” arguments could not survive even “the most deferential of
the potential standards” of review—“reviewing the
agency’s good cause determination to see if it is arbitrary and capricious.” Id. at 26a–27a & n.22; see
also id. at 30a (citing “the Agencies’ justifications for
avoiding notice and comment to the [interim final
rules]” as supporting the conclusion that the agency
violated the APA). In particular, the court of appeals
noted that the interim final rules sought to settle a
long-simmering controversy through “a dramatic
overhaul” of existing agency regulations. Id. at 28a.
The good-cause exception was not designed for that
purpose.
18
With respect to content and structure, the preambles to the interim final rules do not contain separate
sections devoted to seeking comment on the substance
of the proposal. Rather, the agencies contend that they
satisfied notice-and-comment procedures because
they “‘request[ed] and encourage[d] public comments
on all matters addressed in the[] interim final rules,”
thus serving as a notice of proposed rulemaking with
respect to final rules.” U.S. Br. 37 (quoting 82 Fed.
Reg. 47,792, 47,813 (Oct. 13, 2017), and 82 Fed. Reg.
47,838, 47,854 (Oct. 13, 2017)) (internal citations
omitted). The terseness of this “request,” however,
supports the inference that the agencies regarded
public comment as an afterthought to the interim final
rule rather than necessary step to promulgating procedurally valid regulations. Moreover, the three agencies responsible for the rules took insufficient steps to
“to ensure that the public [was] notified of the request
for comment.” ACUS Rec. 95-4, 60 Fed. Reg. at 43,112.
Two of the three agencies did not publish even a crossreference to their request for comment in the “Proposed Rules” section of the Federal Register, while the
Internal Revenue Service’s cross-reference did not
speak for the other two agencies and did not invite
comment on the rules as a whole, but instead focused
on “two sets of temporary [tax] regulations” contained
within the overall regulatory package. See 82 Fed.
Reg. 47,656 (Oct. 13, 2017); 82 Fed. Reg. 47,658 (Oct.
13, 2017). Even assuming a cross-reference is ever sufficient to constitute a notice of proposed rulemaking
under the APA, the circumstances here suggests that
the agencies did not act in good faith to make the interim final rules an adequate substitute for notices of
proposed rulemaking, but, rather, sought to avoid the
19
delay and public accountability associated with the
APA’s rulemaking process.
The government argues that the final rules are
nonetheless “procedurally valid” because the agencies
“consider[ed] and explain[ed] [their] response to comments” in the final rules. U.S. Br. 37. But considering
and explaining comments are just two of the requirements that the APA imposes on every notice-and-comment rulemaking. Another requirement is prior issuance of a notice of proposed rulemaking. 5 U.S.C.
§ 553(b) & (c). The government’s test, which focuses
solely on the quality of the agency’s response to comments, writes the prior notice requirement out of the
APA.
The government also contends that this Court need
not take any action to enforce the prior notice requirement because “rational agencies have no incentive to
make bad-faith claims of good cause.” U.S. Br. 38. The
standard proposed above, supra pp. 14–16, takes account of the reasonableness of an agency’s invocation
of good cause. Furthermore, an agency responsive to
political pressures will not always behave rationally,
and the standard of review must take into account
that possibility. The government also argues that
agencies will be deterred from improperly invoking
good cause by the prospect of “burdensome litigation”
and because circumvention of APA procedures would
“complicate [their] defense of the final rule.” Id. But
agencies are well aware that neither industry nor the
public has the resources to litigate every agency action
circumventing notice-and-comment procedures, especially if the agency can easily moot such challenges by
issuing a final rule. And if the government prevails
here, an agency need not be concerned about litigation
over circumvention of notice-and-comment proce-
20
dures, so long as it satisfies its separate APA obligation to “consider[] and explain[] its response to comments.” Id. at 37.
In sum, to rule that the agencies complied with the
APA in the circumstances presented here—or that
their failure to comply was harmless—would hand
federal agencies a roadmap for adopting legislative
rules through means other than notice-and-comment
rulemaking. Such an outcome would enable agencies
to issue regulations that have the “force and effect of
law” without regard to the “procedural requirements
imposed by Congress” to “assure fairness and mature
consideration of rules of general application.” Chrysler
Corp., 441 U.S. at 303 (internal quotation marks omitted). Especially when coupled with the government’s
argument that reviewing courts cannot issue nationwide injunctions against improperly promulgated regulations (see Part II, infra), the end result would be to
aggrandize agency power and diminish the ability of
reviewing courts or the public to hold agencies to account for their actions, contrary to the intent of Congress when it enacted the APA.
II.
Courts engaged in pre-enforcement review of agency rulemaking have authority
to grant relief with nationwide effect.
Although the government asks this Court to reverse the “nationwide preliminary injunction” in this
case, U.S. Br. I, it acknowledges that an injunction can
be as broad as “necessary to provide complete relief to
plaintiffs.” Id. at 44 (quoting Califano v. Yamasaki,
442 U.S. 682, 702 (1979)). The court of appeals and the
district court applied the “complete relief” standard in
deciding that the rules under review should be enjoined nationwide. See Pet. App. 43a; 175a–76a. The
21
lower courts recognized that an injunction limited to
the geographic area of Pennsylvania and New Jersey
would not afford complete relief because many of respondents’ residents work or attend school out of
state, id. at 44a–45a, 181a–82a, and the government
does not contend that an injunction limited to the geographic boundaries of those two states would completely relieve the harm that respondents suffer. See
U.S. Br. 47–48. In the end, the government rests on
the argument that the nationwide injunction “is outweighed by the government’s interest in protecting
rights of conscience.” Id. at 48. But the questions
whether a court has authority to issue a nationwide
injunction and whether such an injunction is necessary to afford complete relief are separate from the
question whether the injunction should be narrowed
to accommodate countervailing interests. Cf. Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 32 (2008) (“An
injunction is a matter of equitable discretion; it does
not follow from success on the merits as a matter of
course.”). For these reasons, this case does not present
a suitable vehicle for addressing broader questions
about the propriety of nationwide injunctions in other
contexts. The Court should reject the government’s invitation to do so.
If the Court does address the use of injunctions
against agencies more generally, the Court should
conclude that nationwide relief is the ordinary remedy
in cases where the APA or another statute authorizes
judicial review of challenges to agency rules, subject
to reviewing courts’ equitable authority to grant narrower relief in appropriate circumstances. The government’s position—under which a reviewing court’s decision can benefit only the parties challenging the rule
22
in court—would sow confusion and disrupt the orderly
administration of agency regulatory regimes.
A. The APA authorizes courts to take two actions
with respect to agency actions that are under review.
First, a reviewing court may “postpone the effective
date of an agency action” pending review. 5 U.S.C.
§ 705. Second, the reviewing court may “set aside
agency action” found to be unlawful. Id. § 706(2).
When the agency action under review is a rule, a
court’s exercise of these authorities often will benefit
third parties not before the court: If a court postpones
the effective date of a rule pending review, see id.
§ 705, then the rule will not go into effect while judicial review is underway. If a court “sets aside” a rule
after review, id. § 706, the rule is “annul[led]” or “vacate[d],” and therefore without effect. Black’s Law Dictionary (11th ed. 2019) (defining “set aside”); United
Steel v. Mine Safety & Health Admin., 925 F.3d 1279,
1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”). Accordingly, a reviewing court’s action in granting relief to a party bringing
a facial challenge to an agency rule will typically have
nationwide effect as a matter of course.
The nationwide effect of court decisions is an inherent aspect of the APA’s regulation of the rulemaking process. For example, the APA provides that a person may ask a court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C.
§ 706(1). Such relief “carrie[s] forward” the traditional
judicial remedy of a writ of mandamus to compel an
agency to perform a legally required action. Norton v.
S. Utah Wilderness Alliance, 542 U.S. 55, 63 (2004).
When the agency action being unlawfully withheld or
unreasonably delayed is a rule, a successful challenge
to the agency’s failure to act will necessarily benefit
23
both the challenger before the court and all other persons with an interest in the rule. In much the same
way, when a party successfully obtains preliminary or
final relief in a challenge to an agency’s final rule, the
court’s decision implicates the interests of all persons
affected by the rule, not just the litigants in the case.
Indeed, if an agency issues a new proposed rule with
opportunity for comment in response to a court decision or revises its rule to conform to a court’s decision,
those actions necessarily affect litigants and non-litigants alike.
Despite the APA’s seemingly mandatory language
stating that a reviewing court “shall … set aside” unlawful agency action, 5 U.S.C. § 706(2), the APA permits the reviewing court to issue relief that is narrower in scope than the statutory default remedy. The
APA preserves the court’s “power [to] deny relief on
any … appropriate legal or equitable ground.” 5 U.S.C.
§ 702. A reviewing court, for example, has equitable
discretion to leave an unlawfully promulgated rule in
place pending remand to the agency. See, e.g., United
Steel, 925 F.3d at 1287 (discussing remedy of remand
without vacatur). In appropriate circumstances, a
court may also decide to limit relief only to the party
challenging the rule. For example, in Sharon Steel
Corp. v. EPA, 597 F.2d 377 (3d Cir. 1979), the court,
in a case challenging air quality standards issued
without prior notice and comment, “le[ft] the challenged rule in effect except as to the specific designations contested in this case and as applied to these two
petitioners alone,” because broader relief would “endanger the Congressional scheme for the control of air
pollution.” Id. at 381. The courts’ “ordinary practice”
when a rule is successfully challenged, however, “is to
vacate” the rule. United Steel, 925 F.3d at 1287.
24
B. Courts have good reason for applying the APA’s
default remedies to unlawfully promulgated rules in
the typical case: to preserve uniform application of
agency rules and avoid confusion and uncertainty
among the regulated industry and the public.
The government’s contrary position would raise
difficult questions about how to identify the parties
entitled to benefit from the court’s decision. The government appears to invite greater use of class actions
in APA cases as a means of securing comprehensive
relief. U.S. Br. 45. But class actions in the context of
an APA rulemaking challenge would divide the regulatory world into persons who are class members and
those who are not, thus requiring agencies to implement a system for identifying class members and (as
discussed below) potentially to maintain different regulatory regimes for class members and non-class
members. The problem would be even more acute
when an association brings a successful challenge on
behalf of its members. See, e.g., Chesapeake Climate
Action Network v. EPA, 952 F.3d 310, 318 (D.C. Cir.
2020). In that situation, distinguishing between those
who could benefit from the court’s injunction and
those who could not would be nigh impossible, especially for large associations and associations whose
membership changes over time.
In this case, the government’s call for party-specific relief appears administrable because respondents
are states, state boundaries are readily ascertainable,
and state-based regulation is familiar. In the lion’s
share of APA cases, however, the challengers are individuals, businesses (large or small), municipalities,
tribal entities, or associations of any of these. Unlike
states, these potential challengers are randomly scattered throughout the country, alongside similarly
25
situated persons who did not participate in litigation
against the agency. Under the government’s theory,
the challengers would be governed by a regulatory regime shaped by the court’s injunction, while the
agency remained free to impose its preferred regime
on those challengers’ non-litigating neighbors and
competitors. Such a patchwork regulatory system
would necessarily be arbitrary and capricious.
In addition, the government’s argument focuses
exclusively on APA proceedings in district courts; it
ignores entirely the problem of petitions to review
agency action filed directly in the courts of appeals.
See U.S. Br. 45–46. The courts of appeals have exclusive jurisdiction to hear facial challenges to certain
rules adopted by certain agencies. See, e.g., 28 U.S.C.
§ 2342; 33 U.S.C. § 1369(b)(1); PDR Network, LLC v.
Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051,
2053 (2019) (describing review of Federal Communications Commission rules); Nat’l Ass’n of Mfrs. v. Dep’t
of Def., 138 S. Ct. 617, 626–27 (2018) (describing review of Environmental Protection Agency (EPA) rules
under section 1369(b)(1)). Congress has directed that
petitions for review filed in multiple courts of appeals
be consolidated in a single circuit, 28 U.S.C. § 2112,
which has the power to stay an agency’s rule pending
review and “enjoin[], set[] aside, or suspend[]” an
agency rule found to be invalid, 28 U.S.C. § 2349. For
certain rules, Congress has designated a single circuit
to hear APA challenges. See, e.g., 42 U.S.C.
§ 7607(b)(1) (requiring certain EPA decisions to be reviewed in the D.C. Circuit). But under the government’s current view of judicial power, direct review in
the court of appeals can produce no greater relief than
district court review—only the parties before the court
may benefit from the court’s decision and the agency
26
remains free to apply its rules to third parties who
have not secured an injunction for themselves. This
view is incompatible with Congress’s goal in enacting
these review provisions: fostering national uniformity
in the application of various regulatory systems. 3
C. The government offers several arguments why
courts reviewing agency rules under the APA cannot
grant relief that benefits non-litigants. None has
merit.
The government argues that the Constitution and
traditional equitable principles prohibit “nationwide
injunction[s]” that “extend[] relief” to non-litigants.
U.S. Br. 43–44. Court judgments, however, commonly
benefit persons who are not parties to the litigation.
For example, when a court issues a consent decree in
a government enforcement action, the decree often
“extends relief” to members of the public, even though
the public typically cannot enforce the decree directly
(e.g., through contempt proceedings). See Blue Chip
Stamps v. Manor Drug Stores, 421 U.S. 723, 750
(1975) (“[A] consent decree is not enforceable directly
or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it.”). Likewise, a court decision striking down
legislative districts as unconstitutional racial gerrymanders affects all the voters of those districts, even
voters who are not parties to the lawsuit. See, e.g.,
Cooper v. Harris, 137 S. Ct. 1455, 1466 (2017). And
––––––––––––––––––––––––
3 At one time, the government itself expressed a preference
for “initial review in a court of appeals” because it would “promote[] national uniformity, an important goal in dealing with
broad regulations.” Nat’l Ass’n of Mfrs., 138 S. Ct. at 634 (quoting
government’s brief) (internal quotation marks and original
brackets omitted).
27
when a court orders an owner of a public accommodation to comply with the Americans with Disabilities
Act, the benefits accrue to both the plaintiff and to all
other disabled users of the accommodation. See, e.g.,
Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075,
1078 (9th Cir. 2004) (upholding injunction requiring
modification to theater’s companion-seating policy).
Indeed, the government recognizes that “some plaintiffs’ injuries can be remedied only in ways that incidentally benefit non-parties.” U.S. Br. 44.
Moreover, the government’s concern about courts
issuing decisions that affect the interests of non-parties makes little sense in the context of an APA challenge to an agency rule. For example, if trade groups
challenge an agency regulation designed to benefit
consumers, a court decision will necessarily affect the
rights of consumers who are not parties to the litigation. Likewise, if the government prevails here, the
rights of potentially millions of contraception users
will be affected notwithstanding their absence from
this litigation. Those outcomes arise from the nature
of APA challenges to agency rules; they do not signify
a departure from traditional equitable principles or
constitutional constraints on Article III courts.
The government’s brief discussion of the text of the
APA adds little to its argument. First, the government
observes that section 705 authorizes relief pending review as “necessary to prevent irreparable injury.” U.S.
Br. 49 (quoting 5 U.S.C. § 705). As the district court
found, however, “anything short of a nation-wide injunction would likely fail to provide the States ‘complete relief’” because, “[w]hile a nation-wide injunction may prove overbroad, there is no more geographically limited injunction that protects the States from
potential harm.” Pet. App. 183a. The government may
28
disagree with the lower courts’ judgment on the specific facts of this case, but that disagreement does not
warrant the blanket prohibition on nationwide injunctions that the government espouses here. Second, the
government argues that section 706(2)’s command
that courts “‘set aside’” unlawful agency regulations
“does not mandate that ‘agency action’ shall be set
aside globally, rather than as applied to the plaintiffs
who brought the suit.” U.S. Br. 49 (quoting 5 U.S.C.
§ 706(2)). It is true that section 706(2) does not “mandate” setting aside an unlawful rule in that the APA
permits courts to exercise their equitable discretion to
issue a narrower remedy. Consistent with the statutory text, however, vacatur of an unlawful rule—
which is necessarily “global[],” U.S. Br. 49, in scope—
is the “ordinary practice.” United Steel, 925 F.3d at
1287.
D. The remedies authorized by the APA provide a
particularly important check on the modern administrative state. Judicial review of agencies’ promulgation of new rules has have become a common mechanism of administrative accountability since Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), recognized
that judicial review is “ripe” when a rule has a “sufficiently direct and immediate” impact on the challenger. Id. at 152; Nicholas Bagley, The Puzzling Presumption of Reviewability, 127 Harv. L. Rev. 1285,
1337 (2014) (“Preenforcement review … is today
widely accepted as an essential feature of the administrative law landscape.”); see also PDR Network, 139
S. Ct. at 2060 (Kavanaugh, J., dissenting) (recognizing
that Abbott Labs “revolutionized administrative law
by also allowing facial, pre-enforcement challenges to
agency orders”).
29
The government’s position that reviewing courts
may not take action that precludes an agency from enforcing its rules against non-litigants threatens to undermine the efficacy of facial challenges as a tool for
agency accountability. If the government were correct,
agencies would have virtually unfettered discretion to
decide whether to revise their rules to respond to court
decisions or, instead, to press forward with the rules
after they have been held unlawful, applying them to
persons without the resources to challenge them. In
such a world, a successful facial challenge would provide certainty about the enforceability of a rule only to
the parties to the challenge; all other affected persons
would need to bring separate lawsuits to protect themselves from the rule, or wait until the rule were enforced against them to raise their claims, as in the preAbbott Labs days. What’s more, because the agency is
always the losing party when an injunction is issued,
the agency would also retain unchecked discretion
over whether to appeal an adverse decision (and risk
establishing adverse binding precedent) or, instead, to
continue enforcing its rules against non-parties. In
many situations, non-parties—particularly individuals and small businesses who lack the resources and
access to counsel needed to engage in complex litigation against the federal government—would simply
acquiesce to what the agency wants, notwithstanding
that a reviewing court had already concluded that the
rule was unlawful.
30
CONCLUSION
For the foregoing reasons and the reasons stated
in respondents’ brief, the decision below should be affirmed.
Respectfully submitted,
NANDAN M. JOSHI
Counsel of Record
SCOTT L. NELSON
ALLISON M. ZIEVE
PUBLIC CITIZEN LITIGATION GROUP
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
njoshi@citizen.org
Attorneys for Amicus Curiae
April 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.