Amicus Curiae Brief — Joseph R. Biden, Jr., President of the United States, et al., Petitioners v. Texas, et al.
Supreme Court briefMar 18, 2022
Ask Donna
What actually matters in this document.
Text
No. 21-954
IN THE
Supreme Court of the United States
JOSEPH R. BIDEN, JR.,
PRESIDENT OF THE UNITED STATES, ET AL.,
v.
Petitioners,
STATE OF TEXAS, ET AL.,
Respondents.
On Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit
BRIEF OF AMICUS CURIAE PUBLIC CITIZEN
IN SUPPORT OF PETITIONERS
NANDAN M. JOSHI
Counsel of Record
ALLISON M. ZIEVE
SCOTT L. NELSON
PUBLIC CITIZEN
LITIGATION GROUP
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
njoshi@citizen.org
Attorneys for Amicus Curiae
March 2022
i
TABLE OF CONTENTS
Table of Authorities ................................................... iii
Interest of Amicus Curiae .......................................... 1
Summary of Argument ............................................... 2
Argument .................................................................... 6
I.
The October Memorandum is final
agency action. ....................................................... 6
II. The court of appeals’ reasons for
declining to recognize the October
Memorandum as final agency action lack
merit.................................................................... 13
A. The court of appeals erred by regarding
the October Memorandum as a further
explanation for the June Memorandum,
rather than as a new agency action. ............. 13
B. The reopening doctrine does not apply
when the agency takes action to
effectuate a policy change. ............................. 18
C. The court of appeals was incorrect that
the October Memorandum had no legal
effect. .............................................................. 21
D. DHS was not required to abandon its
appeal of the district court’s injunction
before issuing the October
Memorandum. ................................................ 23
ii
III. The court of appeals’ approach would
make agencies less responsive to the
courts and the public. ......................................... 25
Conclusion ................................................................. 27
iii
TABLE OF AUTHORITIES
Cases
Action on Smoking & Health
v. Civil Aeronautics Board,
713 F.2d 795 (D.C. Cir. 1983) ........................ 8, 11
AFL-CIO v. Chao,
496 F. Supp. 2d 76 (D.D.C. 2007) ...................... 18
Alaska v. U.S. Department of Agriculture,
772 F.3d 899 (D.C. Cir. 2014) ............................ 21
Allied-Signal, Inc. v. U.S. Nuclear
Regulatory Commission,
988 F.2d 146 (D.C. Cir. 1993) .............................. 8
American Public Gas Ass’n
v. U.S. Department of Energy,
22 F.4th 1018 (D.C. Cir. 2022) ............................. 8
Anchor Line Ltd. v. Federal
Maritime Commission,
299 F.2d 124 (D.C. Cir. 1962) ............................ 26
Batalla Vidal v. Nielsen,
279 F. Supp. 3d 401 (E.D.N.Y. 2018),
vacated, Department of Homeland
Security v. Regents of the University of
California, 140 S. Ct. 1891 (2020) ..................... 16
Bennett v. Spear,
520 U.S. 154 (1997) .......................... 10, 11, 12, 13
Camp v. Pitts,
411 U.S. 138 (1973) .............................................. 8
Carter v. Fenner,
136 F.3d 1000 (5th Cir. 1998) ............................ 24
iv
Casa De Maryland v. Department of
Homeland Security,
924 F.3d 684 (4th Cir. 2019) .............................. 17
Chamber of Commerce of the United States v
Securities and Exchange Commission,
443 F.3d 890 (D.C. Cir. 2006) ........................ 9, 26
Chicago & Southern Air Lines, Inc. v.
Waterman Steamship Corp.,
333 U.S. 103 (1948) ............................................ 12
Citizens to Preserve Overton Park, Inc.
v. Volpe,
401 U.S. 402 (1971) ........................................ 7, 16
CTIA-The Wireless Ass’n v Federal
Communications Commission,
466 F.3d 105 (D.C. Cir. 2006) ............................ 19
Department of Homeland Security v. Regents
of the University of California,
140 S. Ct. 1891 (2020) .................... 6, 7, 16, 17, 18
Federal Communications Commission
v. Fox Television Stations, Inc.,
556 U.S. 502 (2009). ..................................... 25, 27
Franklin v. Massachusetts,
505 U.S. 788 (1992) .............................................. 6
Georgetown University Hospital v. Bowen,
821 F.2d 750 (D.C. Cir. 1987),
aff’d, 488 U.S. 204 (1988) ................................... 11
Global Tel*Link v. Federal
Communications Commission,
866 F.3d 397 (D.C. Cir. 2017) ............................ 22
Growth Energy v. Environmental
Protection Agency,
5 F.4th 1 (D.C. Cir. 2021) ................................... 19
v
GTE Sylvania, Inc. v. Consumers Union of
the United States, Inc.,
445 U.S. 375 (1980) ............................................ 24
Horne v. Flores,
557 U.S. 433 (2009) ............................................ 25
Independent Equipment Dealers Ass’n v.
Environmental Protection Agency,
372 F.3d 420 (D.C. Cir. 2004) ............................ 19
Kiakombua v. Wolf,
498 F. Supp. 3d 1 (D.D.C. 2020) ........................ 18
Mendoza v. Perez,
754 F.3d 1002 (D.C. Cir. 2014) .................... 20, 21
Mine Reclamation Corp. v. Federal Energy
Regulatory Commission,
30 F.3d 1519 (D.C. Cir. 1994) ............................ 24
Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139 (2010) ............................................ 24
Motor Vehicle Manufacturers Ass’n of the
United States, Inc. v. State Farm Mutual
Automobile Insurance Co.,
463 U.S. 29 (1983) ................................................ 7
NAACP v. Trump,
298 F. Supp. 3d 209 (D.D.C. 2018),
aff’d, Department of Homeland Security
v. Regents of the University of California,
140 S. Ct. 1891 (2020) .................................... 9, 17
NAACP v. Trump,
315 F. Supp. 3d 457 (D.D.C. 2018), aff’d,
Department of Homeland Security v.
Regents of the University of California,
140 S. Ct. 1891 (2020) ........................................ 17
vi
NAACP v. Trump,
321 F. Supp. 3d 143 (D.D.C. 2018) ................ 9, 17
National Ass’n of Reversionary Property
Owners v. Surface Transportation Board,
158 F.3d 135 (D.C. Cir. 1998) ...................... 19, 20
New Jersey v. Environmental
Protection Agency,
989 F.3d 1038 (D.C. Cir. 2021) .......................... 26
Norton v. Southern Utah Wilderness Alliance,
542 U.S. 55 (2004) ................................................ 7
Public Citizen v. Nuclear
Regulatory Commission,
901 F.2d 147 (D.C. Cir. 1990) ...................... 19, 20
Regents of University of California v.
Department of Homeland Security,
279 F. Supp. 3d 1011 (N.D. Cal.), aff’d,
908 F.3d 476 (9th Cir. 2018), rev’d and
vacated, Department of Homeland
Security v. Regents of the University of
California, 140 S. Ct. 1891 (2020) ..................... 17
Securities and Exchange Commission
v. Chenery Corp.,
318 U.S. 80 (1943) .............................................. 15
Securities and Exchange Commission
v. Chenery Corp.,
332 U.S. 194 (1947) .......................... 15, 16, 18, 27
Seila Law LLC v. Consumer Financial
Protection Bureau,
140 S. Ct. 2183 (2020) ........................................ 22
Texas Ass’n of Manufacturers v. U.S.
Consumer Product Safety Commission,
989 F.3d 368 (5th Cir. 2021) ................................ 8
vii
U.S. Army Corps of Engineers v. Hawkes Co.,
578 U.S. 590 (2016) ............................................ 12
United Food & Commercial Workers Union,
Local No. 663 v. U.S. Department
of Agriculture,
532 F. Supp. 3d 741 (D. Minn. 2021) ................... 9
Virgin Islands Telephone Corp. v. Federal
Communications Commission,
444 F.3d 666 (D.C. Cir. 2008) .............................. 8
Whitman v. American Trucking
Associations, Inc.,
531 U.S. 457 (2001) ........................................ 7, 12
Statutes
5 U.S.C. § 551(13) ................................................... 7, 9
5 U.S.C. § 702 .............................................................. 7
5 U.S.C. § 704 .............................................................. 7
5 U.S.C. § 706 .............................................................. 7
5 U.S.C. § 706(2)(A) ................................................ 7, 8
Rules
Federal Rule of Civil Procedure 60(b) ............ 6, 24, 25
Federal Rule of Civil Procedure 62 ............................ 9
INTEREST OF AMICUS CURIAE 1
Public Citizen is a consumer advocacy organization
with members in all 50 states. Public Citizen appears
on behalf of its members before Congress, administrative agencies, and the courts to advocate for policies
that benefit the public. And it is often involved in litigation either challenging or defending agency actions
under the Administrative Procedure Act (APA).
This amicus brief focuses on the second question
presented in this case, which concerns the legal status
of the Secretary of Homeland Security’s October 2021
memorandum (October Memorandum) terminating
the Migrant Protection Protocols (MPP), a policy that
limited entry into the United States for people seeking
admission to the United States through the land border with Mexico. The Secretary issued that memorandum after, and in response to, the district court’s decision to vacate and remand his June 2021 memorandum (June Memorandum) terminating MPP. The
court of appeals concluded that the October Memorandum was not final agency action and, thus, accorded it
no legal effect.
Public Citizen submits this brief to explain that the
court’s decision, if accepted by this Court, would hamstring the ability of federal agencies to respond
promptly to adverse court decisions, because they
would have no assurance that their corrective actions
would be recognized by the courts. This consequence
would make agencies less responsive to adverse court
––––––––––––––––––––––––
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 both parties have consented in writing to its
filing through blanket consents submitted to the Court.
2
decisions and frustrate their ability to carry out their
statutory responsibilities.
SUMMARY OF ARGUMENT
Respondents’ amended complaint sought judicial
review of the June Memorandum terminating MPP.
Pet. App. 151a. Concluding that respondents’ statutory and APA claims had merit, the district court
granted injunctive relief, vacated the June Memorandum, and remanded the matter to the Department of
Homeland Security (DHS). Id. at 212a. In response,
the agency took two actions. First, it appealed the district court’s judgment. Second, “[p]ursuant to the District Court’s remand,” it “once more assessed whether
MPP should be maintained, terminated, or modified.”
Id. at 259a. After “examin[ing] considerations that the
District Court determined were insufficiently addressed in the June 1 memo,” id., the DHS Secretary
issued the October Memorandum, in which he again
“determined that MPP should be terminated,” id. at
260a, and again terminated it.
The October Memorandum is final agency action
under the APA. The court of appeals, however, in assessing its jurisdiction over DHS’s appeal of the district court’s decision regarding the June Memorandum, incorrectly stated that the October Memorandum “did not constitute a new and separately reviewable ‘final agency action.’” Pet. App. 23a. The district
court’s vacatur of the June Memorandum (which was
not stayed pending appeal) nullified the Secretary’s
initial decision to terminate MPP. With MPP back in
place (unless and until its vacatur were subsequently
reversed on appeal), DHS was required to undertake
a new and separate action if it sought to terminate the
program. That is what DHS did in the October
3
Memorandum. The court of appeals’ reasons for refusing to recognize the October Memorandum as final
agency action cannot be reconciled with bedrock administrative-law principles. This Court should reverse.
I. The APA establishes the procedures by which
courts review final agency action and authorizes them
to set aside agency action that they find to be arbitrary
and capricious because the agency failed to engage in
reasoned decisionmaking. If a court concludes that the
administrative record before the agency when it made
its decision does not support the agency’s action, the
usual remedy is for the court to vacate the action,
thereby restoring the status quo ante, and to remand
the matter to the agency. Only when a court remands
without vacatur, or stays its judgment or mandate,
does the agency action remain in effect pending remand proceedings.
In light of these principles, the October Memorandum is final agency action that is distinct from the final agency action taken in the June Memorandum. As
the courts below recognized, the June Memorandum
constituted final agency action because it embodied
the consummation of DHS’s decisionmaking process to
terminate MPP and had the effect of changing agency
policy toward that end. The October Memorandum
stands on the same legal footing: At the time it was
issued, the district court’s vacatur of the June Memorandum had taken effect, and MPP had been re-established as DHS policy. The October Memorandum reverses that policy by once again terminating MPP.
Thus, like the June Memorandum, the October Memorandum is final agency action.
4
II. The court of appeals’ reasons for refusing to recognize the October Memorandum as final agency action lack merit.
First, the court of appeals failed to appreciate the
import of the district court’s vacatur. The district
court did not vacate only the Secretary’s explanation
for terminating MPP; it terminated the underlying action as well. Accordingly, when the Secretary issued
the October Memorandum, he was not purporting to
provide an additional explanation for his prior decision to terminate MPP, but, rather, was taking new
action accompanied by a new explanation that responded to the concerns raised by the district court.
The court of appeals wrongly analogized the October Memorandum to the Nielsen memorandum that
this Court concluded was a post hoc rationalization in
Department of Homeland Security v. Regents of the
University of California, 140 S. Ct. 1891 (2020) (Regents). In that case, this Court concluded that the
Nielsen memorandum was a post hoc rationalization
because DHS had adopted it as an elaboration of its
rationale for the action under review before the vacatur of that action had taken effect. Here, by contrast,
the Secretary issued the October Memorandum after
the district court’s vacatur of the June Memorandum
had become effective. Because offering a post hoc rationalization for action that has already been set aside
would be nonsensical, the Secretary’s only option for
addressing the deficiencies identified by the district
court was to take new agency action, which is what
the October Memorandum represents.
Second, the court of appeals erred in invoking the
D.C. Circuit’s “reopening” doctrine to assess whether
the October Memorandum is final agency action. That
5
doctrine is used to determine whether an agency has
triggered a new period for seeking judicial review of
an existing agency policy. Thus, it comes into play only
when the agency has restated its existing policy, in the
absence of any judicial order or legislation requiring it
to reconsider an action. Here, by contrast, the October
Memorandum alters the agency’s existing policy by
terminating MPP, which the district court’s vacatur of
the June Memorandum had reinstated. A policy
change of this sort is necessarily made through final
agency action, and the court of appeals misapplied the
reopening doctrine to conclude otherwise.
Third, the court erred when it concluded that the
October Memorandum does not have legal effect. The
October Memorandum superseded the June Memorandum and, thereby, eliminated DHS’s interest in
having the reasoning of the June Memorandum upheld on appeal. The court further erred in concluding
that the October Memorandum could have no legal effect because the district court enjoined DHS to implement MPP. The injunction expressly contemplates
that DHS will be able to rescind MPP by taking final
agency action in compliance with the requirements of
the APA. DHS did so in the October Memorandum—
creating, like any final agency action, the potential for
an APA challenge to the lawfulness of that new action.
Finally, the court also erred in suggesting that
DHS was required to dismiss its appeal for the October Memorandum to be treated as final agency action.
Because the district court’s injunction imposed continuing obligations on DHS, the agency’s interest in seeking reversal of the district court’s judgment survived
its rescission of the June Memorandum. Contrary to
the court of appeals’ suggestion, DHS was not required to pursue relief from the injunction under
6
Federal Rule of Civil Procedure 60(b) for the October
Memorandum to be given legal effect. Moreover, an
agency does not have to dismiss its appeal before taking an action that potentially moots it, nor does its
failure to dismiss its appeal after taking such action
vitiate an otherwise valid agency action.
III. This Court should ensure that agencies, when
faced with an adverse court decision, have the flexibility to pursue an appeal and undertake corrective
agency action simultaneously. If, as the court of appeals suggests, an agency that pursues an appeal
risks having the legal effect of its corrective action disregarded, the agency could be deterred from acting expeditiously after its preferred policy option is vacated
on judicial review. Alternatively, the agency whose
rule was vacated as arbitrary and capricious for failure to provide an adequate explanation or to consider
all pertinent facts could be incentivized to adopt a different rule on remand—not because a different approach is optimal, but only so that it could point to a
substantive change that would preclude a court from
treating its subsequent action as a post hoc rationalization. In either case, the outcome would undermine
Congress’s judgment to grant the agency the discretion to determine how best to implement important
statutory objectives and, accordingly, would be contrary to foundational principles of administrative law.
ARGUMENT
I. The October Memorandum is final agency action.
A. “The APA ‘sets forth the procedures by which
federal agencies are accountable to the public and
their actions subject to review by the courts.’” Regents,
140 S. Ct. at 1905 (quoting Franklin v. Massachusetts,
7
505 U.S. 788, 796 (1992)). The focus of judicial review
under the APA is “agency action,” defined “to cover
comprehensively every manner in which an agency
may exercise its power.” Whitman v. Am. Trucking
Ass’ns, Inc. 531 U.S. 457, 478 (2001); see 5 U.S.C.
§ 551(13) (defining “agency action”). The APA provides that persons “adversely affected or aggrieved by
agency action [are] entitled to judicial review thereof,”
5 U.S.C. § 702, and that “final agency action for which
there is no other adequate remedy in a court [is] subject to judicial review,” id. § 704. See generally Norton
v. S. Utah Wilderness All., 542 U.S. 55, 61–64 (2004).
The APA further authorizes reviewing courts to
“hold unlawful and set aside agency action, findings,
and conclusions found to be … arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A). In deciding whether
an agency has acted arbitrarily or capriciously, courts
consider whether its action is the product of “reasoned
decisionmaking.” Regents, 140 S. Ct. at 1905 (internal
quotation marks omitted); see Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 52 (1983).
The APA directs reviewing courts to “review the
whole record or those parts of it cited by a party” in
making that determination. 5 U.S.C. § 706. As this
Court has explained, the “whole record” refers to the
“full administrative record that was before the
[agency] at the time [it] made [its] decision,” and thus
excludes “post hoc rationalizations” developed after
the agency took the action under review. Citizens to
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 419–
20 (1971) (internal quotation marks omitted).
8
Generally, if the agency action “is not sustainable
on the administrative record made, then the [agency’s]
decision must be vacated and the matter remanded to
[it] for further consideration.” Camp v. Pitts, 411 U.S.
138, 143 (1973); see 5 U.S.C. § 706(2)(A) (providing
that a reviewing court “shall ... set aside” unlawful
agency action); see also Am. Pub. Gas Ass’n v. U.S.
Dep’t of Energy, 22 F.4th 1018, 1030 (D.C. Cir. 2022)
(stating that “vacatur is the normal remedy when a
rule is found unlawful” (internal quotation marks
omitted)). A reviewing court’s vacatur, or setting
aside, of agency action “restore[s] the status quo ante.”
Virgin Islands Tel. Corp. v. FCC, 444 F.3d 666, 672
(D.C. Cir. 2008). Accordingly, when a court vacates an
agency decision to rescind a rule, the court’s judgment
has the “effect of reinstating the rule[] previously in
force.” Action on Smoking & Health v. Civil Aeronautics Bd., 713 F.2d 795, 797 (D.C. Cir. 1983).
Courts have recognized that, in certain circumstances, immediate vacatur of agency action may be
disruptive or otherwise unwarranted and, therefore,
have employed various means in such cases to allow
agency actions found to violate APA standards to remain in effect temporarily pending further agency
proceedings. For example, the D.C. Circuit and other
courts have held that “remand without vacatur is a
useful arrow in a court’s remedial quiver,” which
courts will employ “depend[ing] on the seriousness of
the [action’s] deficiencies (and thus the extent of doubt
whether the agency chose correctly) and the disruptive consequences of an interim change that may itself
be changed.” Am. Pub. Gas Ass’n, 22 F.4th at 1030
(quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993));
see also Texas Ass’n of Mfrs. v. U.S. Consumer Prod.
9
Safety Comm’n, 989 F.3d 368, 389 (5th Cir. 2021)
(granting remand without vacatur). Even when a
court concludes that vacatur is the appropriate remedy, it may stay its judgment or mandate for a period
of time to give the agency an opportunity to address
the court’s decision before the agency’s action is undone. See, e.g., Chamber of Commerce of U.S., Inc. v
SEC, 443 F.3d 890, 909 (D.C. Cir. 2006) (withholding
issuance of mandate for 90 days); United Food & Commercial Workers Union, Local No. 663 v. USDA, 532
F. Supp. 3d 741, 782 (D. Minn. 2021) (staying order of
vacatur for 90 days); NAACP v. Trump, 298 F. Supp.
3d 209, 245–46 (D.D.C. 2018) (NAACP I) (staying order of vacatur for 90 days), judgment aff’d, Regents,
140 S. Ct. 1891. A reviewing court may also stay its
judgment to allow the agency to obtain appellate review before a vacatur takes effect. See Fed. R. Civ. Pro.
62; e.g., NAACP v. Trump, 321 F. Supp. 3d 143, 145–
46 (D.D.C. 2018) (NAACP III) (granting partial stay
pending appeal).
B. Under the foregoing principles, issuance of the
October Memorandum represents final agency action
that is distinct from issuance of the June Memorandum.
1. DHS initiated MPP in December 2018. The following month, then-Secretary Nielsen issued a memorandum providing “guidance for implementation of
MPP.” Pet. App. 157a–58a. In January 2021, the new
administration suspended new enrollments in MPP
and undertook a review to consider terminating or
modifying it. Id. at 347a–48a. After completing that
review, the Secretary issued the June Memorandum
formally “terminating the MPP program.” Id. at 348a.
10
In the district court, the parties disputed whether
the June Memorandum constituted final agency action. Pet. App. 180a–82a. Because the June Memorandum undisputedly was “agency action” within the
broad definition in 5 U.S.C. § 551(13), the court focused on whether it was “final.” Pet. App. 181a. Applying the two-prong test set forth in Bennett v. Spear,
520 U.S. 154 (1997), the court considered whether the
June Memorandum (1) “marks the consummation of
the [agency’s] decisionmaking process” and (2) “produces legal consequences and determines rights and
obligations.” Pet. App. 181a. The parties agreed that
Bennett’s first prong was satisfied. Id. With regard to
the second prong, which the government disputed, the
court explained that the June Memorandum “had the
immediate legal consequence of ‘terminating the MPP
program,’” and “of rescinding” Secretary Nielsen’s
memorandum on MPP. Id. The court also explained
that the June Memorandum directed DHS personnel
to commence the process of terminating MPP and precluded line officers from using MPP. Id. at 182a.
The court of appeals affirmed the determination
that the June Memorandum was final agency action.
Pet. App. 15a–19a. The court held that the June Memorandum consummated the agency’s decisionmaking
process, rejecting DHS’s argument that the decision
“isn’t final until the agency applies it ‘in a particular
situation.’” Id. at 16a. The court also concluded that
the June Memorandum had legal consequences and
determined rights and obligations because it “bound
DHS staff by forbidding them to continue the program
in any way from that moment on.” Id. at 17a.
2. Like the June Memorandum, the October Memorandum constitutes an action by the agency to
change its policy regarding the manner in which it
11
would exercise its authority towards applicants for admission arriving by land through Mexico. Thus, like
the June Memorandum, the October Memorandum is
“final” agency action.
When the Secretary issued the October Memorandum, the June Memorandum was not in effect. After
holding that the June Memorandum “was arbitrary
and capricious and in violation of the APA,” Pet. App.
200a, and that respondents’ “statutory claim is meritorious as well,” id. at 202a, the district court expressly declined to remand to the agency without vacating the June Memorandum, id. at 203a–209a. Instead, it issued a judgment setting the June Memorandum aside. See id. at 212a–13a, 364a. The vacatur
took effect on August 24, 2021, after the government’s
requests for a stay pending appeal were denied. See
id. at 213a (staying vacatur until August 20, 2021);
Order of Aug. 20, 2021, No. 21A21 (S. Ct.) (extending
stay until August 24, 2021); Pet. App. 214a (denying
application for stay). Accordingly, when the Secretary
adopted the October Memorandum, the MPP program
had been “reinstat[ed]” by the district court’s vacatur
and was “in force” at the agency, just as it was when
the Secretary issued the June Memorandum. Action
on Smoking & Health, 713 F.2d at 797; see also
Georgetown Univ. Hosp. v. Bowen, 821 F.2d 750, 757–
58 (D.C. Cir. 1987) (“[W]hen the District Court vacated the Secretary’s 1981 wage-index rule, it necessarily reinstated the Secretary’s 1979 rule, which required the Secretary to reimburse providers using a
formula that included federal-hospital data.”), aff’d,
488 U.S. 204 (1988).
With respect to the question of final agency action,
the October Memorandum stands on the same footing
as the June Memorandum. The October Memorandum
12
is not of a “tentative or interlocutory nature,” but
“mark[s] the ‘consummation’ of the agency’s decisionmaking process” conducted in response to the vacatur and remand of the June Memorandum. Bennett,
520 U.S. at 178 (quoting Chicago & S. Air Lines, Inc.
v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)). The
Secretary explained that he “assessed whether MPP
should be maintained, terminated, or modified,” “examined considerations that the District Court determined were insufficiently addressed” in the June
Memorandum, and “carefully consider[ed] the arguments, evidence, and perspectives presented by those
who support re-implementation of MPP, those who
support terminating the program, and those who have
argued for continuing MPP in a modified form.” Pet.
App. 259a–60a. At the completion of that review, the
Secretary “ruled definitively” that MPP must be terminated, U.S. Army Corps of Eng’rs v. Hawkes Co.,
578 U.S. 590, 598 (2016) (internal quotation marks
omitted), thus rendering his “last word on the matter
in question,” Am. Trucking Ass’ns, 531 U.S. at 478 (internal quotation marks omitted).
In addition, “legal consequences will flow” from the
October Memorandum, Bennett, 520 U.S. at 178 (internal quotation marks omitted), in the same way the
court of appeals held that legal consequences would
flow from the June Memorandum. The October Memorandum, like the June Memorandum, “terminate[s]
MPP.” Pet. App. 263a. In addition, “[e]ffective immediately,” the October Memorandum “supersede[d] and
rescind[ed]” prior agency actions relating to MPP—
that is, “the June 1 memorandum, Secretary Nielsen’s
January 25, 2019 memorandum, and any other guidance or other documents prepared by the Department
to implement MPP.” Id. at 263a-64a. Although the
13
district court’s injunction precluded DHS from putting
the termination of MPP into immediate effect, the October Memorandum is still final agency action because
it provides that “the termination of MPP will be implemented as soon as practicable after a final judicial
decision to vacate the … injunction.” Id. at 264a. The
October Memorandum thus “alter[s] the legal regime
to which [DHS] is subject,” Bennett, 520 U.S. at 178,
by requiring the agency to terminate MPP upon dissolution of the district court’s injunction.
II. The court of appeals’ reasons for declining to
recognize the October Memorandum as final
agency action lack merit.
The court of appeals declined to recognize the October Memorandum as final agency action, largely because the court failed to appreciate the import of the
district court’s vacatur of the June Memorandum.
Once that vacatur took effect, DHS’s subsequent decision to terminate MPP necessarily represented new
agency action. Accordingly, the court of appeals’ refusal to treat the October Memorandum as final
agency action should be reversed.
A. The court of appeals erred by regarding
the October Memorandum as a further explanation for the June Memorandum, rather than as a new agency action.
1. To support its conclusion that the October Memorandum is not final agency action, the court of appeals conceptualized the Secretary’s actions as follows: In June 2021, the Secretary decided to terminate
MPP (what the court described as the “Termination
Decision”); simultaneously, the Secretary explained
the “Termination Decision” by issuing the June Memorandum; then, in October 2021, the Secretary issued
14
the October Memorandum as a further explanation of
his decision in June to terminate MPP. Pet. App. 22a.
The court analogized the “Termination Decision” to a
court judgment, and the June and October Memorandums as “a court’s opinion[s] explicating its judgment.” Id. Under this view, the only final agency action at issue occurred when the Secretary decided to
terminate MPP in June.
The flaw in the court’s reasoning is that it ignores
the effect of the district court’s vacatur of what the
court of appeals called the “Termination Decision.”
The district court’s judgment did not merely set aside
the Secretary’s explanation for terminating MPP,
while leaving the underlying agency action in place.
Rather, the district court vacated the June Memorandum “in its entirety” and remanded “to DHS for further consideration.” Pet App. 212a. The district court,
moreover, declined to exercise its authority to remand
without vacatur, id. at 203a–09a, and both the court
of appeals and this Court rejected the government’s
requests for a stay of the judgment pending appeal, id.
at 214a, 215a–53a. The decisions denying stays and
allowing the vacatur to take effect would themselves
have no practical effect if the vacatur applied only to
the Secretary’s explanation for his action and not to
the action itself.
Accordingly, after the district court’s vacatur took
effect in August 2021, there was no extant “Termination Decision” for which the Secretary could provide a
further explanation. Rather, the October Memorandum embodies a new agency action terminating MPP,
taken in response to, and addressing the deficiencies
identified in, the district court’s decision.
15
The court of appeals’ analogy to judicial opinions in
support of a judgment suffers from a similar error.
The court’s analogy assumes a situation in which a
district court issues two opinions in support of a single
judgment. The correct analogy, however, would be to
a situation in which a district court issues one opinion
and judgment, the judgment is vacated on appeal and
the case remanded to district court, and the district
court then issues a new opinion and judgment on remand. In that scenario, the district court has unquestionably issued two distinct opinions in support of two
distinct judgments.
In the same way, DHS here has taken two separate
agency actions to terminate MPP—the first in June
and the second in October, after the June action was
vacated and remanded to the agency. Thus, the Secretary’s action on remand is akin to the action on remand taken by the Securities and Exchange Commission (SEC) in this Court’s seminal Chenery cases: SEC
v. Chenery Corp., 318 U.S. 80 (1943) (Chenery I), and
SEC v. Chenery Corp., 332 U.S. 194, 201 (1947)
(Chenery II). In Chenery I, this Court reviewed an SEC
order limiting the rights of certain fiduciaries who
purchased preferred stock pending a corporate reorganization. 318 U.S. at 81, 85. The Court held that the
SEC had relied solely on equitable principles to support its decision, but those principles were not “sufficient to sustain its order.” Id. at 89. On remand, the
SEC “reexamined the problem, recast its rationale
and reached the same result.” Chenery II, 332 U.S. at
196. In Chenery II, this Court upheld the SEC’s order,
explaining that “[t]he fact that the Commission had
committed a legal error in its first disposition” conferred “no vested right” on the challengers; rather;
“[a]fter the remand was made, the [SEC] was bound
16
to deal with the problem afresh, performing the function delegated to it by Congress.” Id. at 200–01 (emphasis added).
Here, the Secretary was in the same position when
the district court’s vacatur took effect, and the October
Memorandum is his attempt to “deal with the problem
afresh.” The court of appeals, accordingly, was wrong
to treat the October Memorandum as mere explanation, rather than as a new agency action.
2. Relying on Regents, the court of appeals suggested that the October Memorandum could not “be
anything more than [a] post hoc rationalization[] of
the [June] Termination Decision.” Pet. App. 45a. The
court considered Regents relevant because, there,
DHS had issued two memorandums justifying rescission of an agency policy: the Duke memorandum in
September 2017 and the Nielsen memorandum in
June 2018, both of which sought to justify rescission
of the Deferred Action for Childhood Arrivals (DACA)
program. See Regents, 140 S. Ct. at 1907. Regents concluded that the Nielsen memorandum “was by its own
terms not a new rule implementing a new policy,” but
instead an “elabora[tion] on the reasons for the initial
rescission.” Id. at 1908. As such, the Court explained,
the Nielsen memorandum constituted an “impermissible ‘post hoc rationalization’” to the extent that it offered justifications for the rescission that went beyond
“the agency’s original reasons” for its action. Id. (quoting Overton Park, 401 U.S. at 420).
The court of appeals’ reliance on Regents ignores
critical differences in the two cases regarding the timing of the agency memorandums. The DACA rescission was challenged in multiple circuits. See Batalla
Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 2018)
17
(granting preliminary injunction); Regents of Univ. of
Cal. v. DHS, 279 F. Supp. 3d 1011 (N.D. Cal.) (same),
aff’d, 908 F.3d 476 (9th Cir. 2018); Casa De Maryland
v. DHS, 924 F.3d 684 (4th Cir. 2019) (finding Duke
memorandum arbitrary but staying mandate). Only
one challenge, however, led DHS to issue the Nielsen
memorandum: In NAACP, the district court, after
finding the DACA’s rescission as explained in the
Duke Memorandum “arbitrary and capricious,” vacated the rescission, but “stay[ed] its order of vacatur
for 90 days … to afford DHS an opportunity to better
explain its view that DACA is unlawful.” NAACP I,
298 F. Supp. 3d at 249; see also id. at 245–46.
“The District Court’s remand thus presented DHS
with a choice: rest on the Duke Memorandum while
elaborating on its prior reasoning, or issue a new rescission bolstered by new reasons absent from the
Duke Memorandum.” Regents, 140 S. Ct. at 1908.
DHS chose “the first path,” id., when it issued the
Nielsen memorandum approximately two months into
the 90-day stay period, see NAACP v. Trump, 315 F.
Supp. 3d 457, 460–63 (D.D.C. 2018) (NAACP II). Rather than take “new administrative action,” DHS “declined to disturb the Duke memorandum’s rescission
and instead provided further explanation for that action.” Regents, 140 S. Ct. at 1908 (emphasis added,
cleaned up). In response to the Nielsen memorandum,
the district court continued the stay of vacatur, see
Scheduling Order, NAACP v. Trump, No. 17-1907
(D.D.C. June 27, 2018), and addressed the Nielsen
memorandum, NAACP II, 315 F. Supp. 3d 457, before
allowing any part of its vacatur of the DACA rescission to take effect, NAACP III, 321 F. Supp. 3d at 143
(granting partial stay of vacatur pending appeal).
18
Here, by contrast, the Secretary had no comparable choice. Once the district court’s judgment took effect in August 2021, the agency had no extant action
to justify, post hoc or otherwise, because vacatur of the
June Memorandum took that “agency action ‘off the
books.’” Kiakombua v. Wolf, 498 F. Supp. 3d 1, 50
(D.D.C. 2020) (quoting AFL-CIO v. Chao, 496 F. Supp.
2d 76, 92 (D.D.C. 2007)); see also Virgin Islands Tel.
Corp., 444 F.3d at 672 (explaining that vacatur “restore[s] the status quo ante.”). Absent reversal of the
district court’s opinion on appeal, the Secretary’s only
option for addressing the deficiencies identified by the
district court was to “‘deal with the problem afresh’ by
taking new agency action.” Regents, 140 S. Ct. at 1908
(quoting Chenery II, 332 U.S. at 201). And that is what
the Secretary did: He “once more assessed whether
MPP should be maintained, terminated, or modified,”
Pet. App. 259a, and based on that assessment, decided
to supersede and rescind the June Memorandum, id.
at 263a. The October Memorandum thus of necessity
and by its express terms represents “new administrative action.” Regents, 140 S. Ct. at 1908. The court of
appeals’ suggestion that this case is analogous to the
situation in Regents is therefore wrong.
B. The reopening doctrine does not apply
when the agency takes action to effectuate a policy change.
The court of appeals also ignored the effect of the
district court’s vacatur when it invoked the “reopening
doctrine” to conclude that the October Memorandum
does not represent final agency action. Pet. App. 23a–
30a.
The reopening doctrine is a principle developed by
the D.C. Circuit to assess whether a challenge to
19
agency action is timely. See Nat’l Ass’n of Reversionary
Prop. Owners v. Surface Transp. Bd., 158 F.3d 135,
141 (D.C. Cir. 1998) (NARPO) (stating that the reopening doctrine is “an exception to statutory limits on
the time for seeking review of an agency decision”
(cleaned up)). The doctrine “arise[s] in situations
where an agency conducts a rulemaking or adopts a
policy on an issue at one time, and then in a later rulemaking restates the policy or otherwise addresses the
issue again without altering the original decision.” Id.
If the “later proceeding explicitly or implicitly shows
that the agency actually reconsidered the rule, the
matter has been reopened and the time period for
seeking judicial review begins anew.” Id. (citing Public
Citizen v. NRC, 901 F.2d 147, 150 (D.C. Cir. 1990)). By
contrast, an agency does not reopen its action, and
thus does not restart the time for seeking review,
“merely by responding to an unsolicited comment by
reaffirming its prior position.” CTIA-The Wireless
Ass’n v. FCC, 466 F.3d 105, 110 (D.C. Cir. 2006)
(cleaned up); see also Indep. Equip. Dealers Ass’n v.
EPA, 372 F.3d 420, 428 (D.C. Cir. 2004) (Roberts, J.)
(explaining that “regulations and interpretations that
have not been reopened by agency action remain at repose and are not newly reviewable”).
The court of appeals determined that the reopening doctrine was relevant to the question whether the
October Memorandum “constitute[s] a new and separately reviewable ‘final agency action.’” Pet. App. 23a.
Based on its review of the context leading up to the
issuance of the October Memorandum, id. at 24a (citing Growth Energy v. EPA, 5 F.4th 1, 21–22 (D.C. Cir.
2021) (per curiam)), the court determined that the October Memorandum “did not come close to reopening
DHS’s Termination Decision,” Pet. App. 28a. As the
20
government has explained, and contrary to the court’s
conclusion, the Secretary explicitly “reopened” the
question whether MPP should be maintained, modified, or terminated. U.S. Br. 46.
The more fundamental problem with the court’s
analysis, however, is its assumption that the reopening doctrine applies at all in the circumstances of this
case. The reopening doctrine applies only when an
agency “restates” an extant rule or policy, typically in
the context of a new rulemaking proceeding. NARPO,
158 F.3d at 141; see also Public Citizen, 901 F.2d at
150 (discussing the “the problem of whether an
agency’s restatement of an existing rule or policy in a
rulemaking format makes the rule or policy challengeable anew” (emphasis added)). In that situation, the
reopening doctrine permits “a plaintiff to bring an otherwise-stale challenge” if the “agency has considered
substantively changing a rule but ultimately declined
to do so.” Mendoza v. Perez, 754 F.3d 1002, 1019 n.12
(D.C. Cir. 2014). The doctrine, however, has no role
where “there [is] new agency action substantively
changing” the agency’s rule or policy. Id. When such a
substantive change occurs, the agency has ipso facto
taken “final agency action sparking a new period for
review.” Id. at 1019.
Thus, the court of appeals’ error is manifest. The
June Memorandum substantively changed DHS policy by terminating MPP. The district court’s vacatur
of the June Memorandum undid the policy change and
restored MPP as agency policy as of August 2021. The
October Memorandum then responded to the district
court’s remand by terminating MPP again. At no point
in this process did DHS restate an extant agency policy without altering the original decision. NARPO, 158
F.3d at 141. Instead, both the June and October
21
Memorandums altered existing agency policy by terminating MPP.
The court of appeals was thus wrong to characterize the October Memorandum as “merely continu[ing],
rather than reopen[ing], the Termination Decision.”
Pet. App. 30a. The October Memorandum could not
“continu[e]” the Secretary’s earlier decision to terminate MPP because that termination was no longer in
effect; the district court’s vacatur of the June Memorandum had reinstated MPP. Cf. Alaska v. USDA, 772
F.3d 899, 900 (D.C. Cir. 2014) (Kavanaugh, J.) (holding that reinstatement of a repealed rule after an intervening court decision triggered new statute-of-limitations period for seeking judicial review). Only a new
final agency action could terminate MPP after the district court’s judgment went into effect. In these circumstances, where the agency alters the status quo
rather than “declin[ing] to do so,” the reopening doctrine plays no role. Mendoza, 754 F.3d at 1019 & n.12
(emphasis removed).
C. The court of appeals was incorrect that
the October Memorandum had no legal effect.
The court of appeals was wrong when it described
the October Memorandum as having “zero legal effect.” Pet. App. 35a. As the court explained it, the October Memorandum accomplished two things: (1) “immediately” superseding and rescinding the June
Memorandum and (2) “terminat[ing] MPP, with that
termination ‘to be implemented as soon as practicable
after a final judicial decision to vacate the … injunction that currently requires good faith implementation and enforcement of MPP.’” Id. at 35a (quoting id.
at 272a). The court believed the rescission of the June
22
Memorandum to be a “nullity” because the district
court “had already vacated the Termination Decision.”
Id. Thus, the court correctly recognized that the district court’s vacatur “rendered the June 1 Termination
Decision void.” Id. at 36a.
Nonetheless, the court erred in concluding that the
district court’s vacatur of the June Memorandum left
“nothing to rescind.” Pet. App. 36a. Because DHS had
appealed the district court’s judgment, the agency retained an interest in the lawfulness of the June Memorandum so long as it embodied and stated the rationale for the agency’s latest action with respect to
terminating MPP. See Global Tel*Link v. FCC, 866
F.3d 397, 407 (D.C. Cir. 2017) (holding that a case was
not moot despite the agency’s refusal to defend its decision in litigation because the order “that gave rise to
the petitions for review is still in force” and the agency
“has never acted to revoke, withdraw, or suspend” the
order); cf. Seila Law LLC v. CFPB, 140 S. Ct. 2183,
2196–97 (2020) (holding that the government’s concession of the constitutional question did not warrant dismissal of the case where the agency had not withdrawn the action in dispute). By rescinding the June
Memorandum, the agency has abandoned the action it
embodied and the rationale it set forth, electing instead to take new action supported by a new explanation that “respond[s] to the [district court’s] criticisms.” Pet. App. 29a. Accordingly, the October Memorandum’s rescission of the June Memorandum is not
a “nullity.”
The court of appeals also declined to give any legal
effect to the October Memorandum’s termination of
MPP because the district court’s injunction precludes
immediate implementation of the decision embodied
in that Memorandum. Pet. App. 36a. The district
23
court’s injunction, however, does not preclude DHS
from taking a new final agency action on remand. To
the contrary, the injunction provides that DHS must
“enforce and implement MPP in good faith until such
a time as it has been lawfully rescinded in compliance
with the APA and until such a time as the federal government has sufficient detention capacity to detain all
aliens subject to mandatory detention under Section
1255 without releasing any aliens because of a lack of
detention resources.” Id. at 212a (second emphases
added). Because the injunction contemplates that
DHS may “lawfully rescind[]” MPP, it necessarily recognizes that DHS must undertake final agency action
to do so. Accordingly, to the extent that the court of
appeals believed that the October Memorandum cannot be final agency action in light of the injunction, its
understanding of the injunction’s effects on DHS’s authority was mistaken.
D. DHS was not required to abandon its appeal of the district court’s injunction before issuing the October Memorandum.
The court of appeals suggested that the October
Memorandum should not be “assessed as a response
to the district court’s remand” because the government
had not “voluntarily dismissed this appeal and asked
the district court for relief from the judgment.” Pet.
App. 51a. To the extent that the court considered
DHS’s decision not to dismiss its appeal as in conflict
with the October Memorandum’s status as final
agency action, that view is unsound.
The relief ordered by the district court was not limited to vacating the June Memorandum and enjoining
its enforcement. See Pet. App. 212a. If it had been,
then DHS, after superseding and rescinding the June
24
Memorandum, would no longer have an interest in
seeking reversal of the district court’s judgment and
could be expected to voluntarily dismiss its appeal. Indeed, in that circumstance, if DHS did not voluntarily
dismiss its appeal, the court would likely be required
to dismiss it as moot. See, e.g., Mine Reclamation
Corp. v. FERC, 30 F.3d 1519, 1522 (D.C. Cir. 1994)
(“Although no party asserts that the case is therefore
moot, we are obliged to address the issue sua sponte
because mootness goes to the jurisdiction of this
court.”).
The district court’s injunction, however, reached
beyond the June Memorandum. It also required DHS
to enforce and implement MPP until certain conditions were met, and it imposed ongoing reporting requirements on the agency. Pet. App. 212a–13a. Therefore, DHS could not voluntarily dismiss its appeal
without acquiescing to the mandatory terms of the district court’s injunction. See GTE Sylvania, Inc. v. Consumers Union of U.S., 445 U.S. 375, 386 (1980) (“[P]ersons subject to an injunctive order issued by a court
with jurisdiction are expected to obey that decree until
it is modified or reversed, even if they have proper
grounds to object to the order.”). The agency’s interest
in seeking reversal of the mandatory duties imposed
by the injunction (and review of the erroneous statutory construction they reflect) thus survived the extinguishment of its interest in the validity of the June
Memorandum. Cf. Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 151 (2010) (“[P]etitioners …
have standing to challenge the part of the District
Court’s order enjoining partial deregulation,” which
was a “part of the judgment that [went] beyond the
vacatur of [the agency’s] deregulation decision.”).
25
The court of appeals indicated that DHS should
nonetheless have dismissed its appeal because it could
move the district court for relief from the injunction
under Federal Rule of Civil Procedure 60(b) and then
appeal any adverse decision. See Pet. App. 51a; see
also id. at 37a, 124a–26a & n.19. In general, however,
Rule 60(b) motions are “interpreted … quite narrowly,” Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir.
1998), and “‘in all but the most exceptional circumstances, a party’s neglect to prosecute a timely appeal
will bar relief under the rule,” id. at 1006 (cleaned up)
(discussing Rule 60(b)(6)). See also Horne v. Flores,
557 U.S. 433, 447 (2009) (“Rule 60(b)(5) may not be
used to challenge the legal conclusions on which a
prior judgment or order rests.”). Moreover, the court
identified no principle of law that requires a party to
abandon its right to direct appellate review in favor of
pursuing collateral relief. In any event, even if Rule
60(b) constituted a viable option for DHS, the court of
appeals erred to the extent it suggested that the
agency’s decision not to pursue that option informs the
question whether the October Memorandum constitutes final agency action.
III. The court of appeals’ approach would make
agencies less responsive to the courts and
the public.
When an agency undertakes a “conscious change of
course,” the necessary implication is that “the agency
believes” its new policy “to be better” than its old one.
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009). If a reviewing court nonetheless sets aside the
action under the APA, the agency has only two options
aside from returning to the status quo ante: (1) seeking
reversal on appeal and (2) taking new agency action
26
that addresses the deficiencies identified by the reviewing court.
An agency may reasonably pursue both options
simultaneously. An agency may exercise its right to
appeal an adverse APA decision based on its view that
the district court erred. At the same time, the agency
may recognize that success on appeal is not guaranteed and that, in the time it takes to complete the appellate process, the district court’s vacatur will have
left the agency’s prior, suboptimal (from the agency’s
perspective) policy in effect. Particularly where an
agency believes that it can readily address the problems identified by a reviewing court, it may well decide to take new action while its appeal is pending.
Absent a statutory constraint, the pendency of an
appeal does not strip the agency of jurisdiction to reconsider its actions. See Anchor Line Ltd. v. Fed. Mar.
Comm’n, 299 F.2d 124, 125 (D.C. Cir. 1962) (“[T]he
pendency of a review petition does not automatically
bar reopening of an administrative proceeding.”); cf.
Chamber of Commerce, 443 F.3d at 899 (stating that
“the Commission was not disabled from sua sponte
considering whether to modify the Rule’s two conditions” before the court issued its mandate). And as
DHS did here (see DHS C.A. Motion (Sept. 29, 2021)
(JA 51); DHS C.A. Motion (Oct. 29, 2021) (JA 57); see
also Pet. App. 12a), agencies generally seek to hold appeals in abeyance when they are considering taking
further action. See, e.g., Anchor Line, 299 F.2d at 125
(“It is true that when an agency seeks to reconsider its
action, it should move the court to remand or to hold
the case in abeyance pending reconsideration by the
agency.”); New Jersey v. EPA, 989 F.3d 1038, 1044
(D.C. Cir. 2021) (noting that “the court held the petition for review in abeyance pending EPA’s
27
reconsideration”). Yet under the court of appeals’
analysis, if an agency takes new action even after its
original action has been vacated, it runs the risk that
the court will dismiss the agency’s action as a post hoc
rationalization for the earlier action. Moreover, the
court suggested that agencies need to abandon their
appeals if they wish to ensure that courts will treat
their new action as final agency action with legal effect, regardless of whether the new action moots the
appeal. That approach would thus discourage agencies from taking expeditious corrective action in response to adverse court decisions.
Further, as noted above (pp. 15–16), a bedrock
principle of administrative law is that an agency may,
on remand after judicial review, “reexamine[] the
problem, recast its rationale and reach[] the same result,” Chenery II, 332 U.S. at 196, and have its action
upheld if its decision is “rooted in … proper and relevant considerations,” id. at 200. The court of appeals’
approach, however, would incentivize agencies to
avoid the “same result,” not because of their considered determination of what policies they believe “to be
better,” Fox Television Stations, Inc., 556 U.S. at 515,
but to avoid the appearance that they failed to “rethink things,” Pet. App. 30a. The end result would be
to make agencies less adept at exercising “the type of
judgment which administrative agencies are best
equipped to make,” in contravention of the goals that
“justif[y] the use of the administrative process.”
Chenery II, 332 U.S. at 209.
CONCLUSION
For the foregoing reasons, and the reasons stated
in petitioners’ brief, the decision below should be reversed.
28
Respectfully submitted,
NANDAN M. JOSHI
Counsel of Record
ALLISON M. ZIEVE
SCOTT L. NELSON
PUBLIC CITIZEN LITIGATION
GROUP
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
njoshi@citizen.org
Attorneys for Amicus Curiae
March 2022
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.