Amicus Curiae Brief — United States, et al., Petitioners v. Texas, et al.

Supreme Court briefSep 19, 2022

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No. 22-58

IN THE

Supreme Court of the United States

UNITED STATES, ET AL.,

Petitioners,

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

ALLISON M. ZIEVE

Counsel of Record

SCOTT L. NELSON

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

azieve@citizen.org

Attorneys for Amicus Curiae

September 2022

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

BACKGROUND .......................................................... 1

SUMMARY OF ARGUMENT .................................... 4

ARGUMENT ............................................................... 5

I. Section 1252(f)(1) poses no barrier to entry of

relief under 5 U.S.C. § 706. ................................... 5

II. The government’s notion that section 706(2)

does not authorize vacatur is contrary to the

APA’s text, its history, and the long-held view

of the courts. ........................................................ 13

CONCLUSION.......................................................... 24

TABLE OF AUTHORITIES

Cases

Pages

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967) ............................................. 17

Aberdeen & Rockfish Railroad Co. v. Students

Challenging Regulatory Agency Procedures,

422 U.S. 289 (1975) ............................................. 11

Action on Smoking & Health v. Civil Aeronautics

Board, 713 F.2d 795 (D.C. Cir. 1983) ................. 18

Alabama v. U.S. Army Corps of Engineers,

424 F.3d 1117 (11th Cir. 2005) ........................... 10

Allied-Signal, Inc. v. NRC,

988 F.2d 146 (D.C. Cir. 1993) ............................... 6

Allina Health Service v. Sebellius,

746 F.3d 1102 (D.C. Cir. 2014)............................ 18

American Meat Institute v. USDA,

760 F.3d 18 (D.C. Cir. 2014) ................................. 7

Armstrong v. Executive Office of the President,

1 F.3d 1274 (D.C. Cir. 1993) ................................. 8

Beecham v. United States,

511 U.S. 368 (1994) ............................................. 15

Biden v. Texas,

142 S. Ct. 2528 (2022) ........................................... 5

Biodiversity Legal Foundation v. Badgley,

309 F.3d 1166 (9th Cir. 2002) ............................. 14

Brito v. Garland,

22 F.4th 240 (1st Cir. 2021) ................................ 12

Business Roundtable v. SEC,

902 F.2d 406 (D.C. Cir. 1990) ............................. 23

Chamber of Commerce v. Department of Labor,

885 F.3d 360 (5th Cir. 2018) ............................... 21

iii

Cobell v. Kempthorne,

455 F.3d 301 (D.C. Cir. 2006) ............................. 10

Columbia Gas Transmission Corp. v. FERC,

404 F.3d 459 (D.C. Cir. 2005) ............................. 15

Comcast Corp. v. FCC,

579 F.3d 1 (D.C. Cir. 2009) ................................... 9

Department of Commerce v. New York,

139 S. Ct. 2551 (2019) ......................................... 17

Department of Homeland Security v. Regents of

University of California,

140 S. Ct. 1891 (2020) ......................... 7, 12, 17, 20

FEC v. Akins,

524 U.S. 11 (1998) ............................................... 19

FTC v. Consumer Defense, LLC,

926 F.3d 1208 (9th Cir. 2019) ............................. 10

Forrest Guardians v. Babbitt,

174 F.3d 1178 (10th Cir. 1998) ........................... 14

Garland v. Aleman Gonzalez,

142 S. Ct. 2057 (2022) ................................... 5, 8, 9

Harmon v. Thornburgh,

878 F.2d 484 (D.C. Cir. 1989) ............................. 18

Humane Society of United States v. Kempthorne,

579 F. Supp. 2d 7 (D.D.C. 2008) ................... 22, 23

Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 333 (1977) ....................... 22

Illinois Public Telecommunications Ass’n v. FCC,

123 F.3d 693 (D.C. Cir. 1997) ............................. 18

In re International Chemical Workers Union,

958 F.2d 1144 (D.C. Cir. 1992)............................ 14

International Ladies’ Garment Workers’ Union v.

Donovan, 722 F.2d 795 (D.C. Cir. 1983) ............. 18

Iowa League of Cities v. EPA,

711 F.3d 844 (8th Cir. 2013) ............................... 21

Lexecon, Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26 (1998) .................................... 6

Long Island Power Authority v. FERC,

27 F.4th 705 (D.C. Cir. 2022) ................................ 5

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................................. 22

Lujan v. National Wildlife Federation,

497 U.S. 871 (1990) ............................................. 22

Make the Road New York v. McAleenan,

405 F. Supp. 3d 1 (D.D.C. 2019),

rev’d on other grounds, Make the Road New

York v. Wolf, 962 F.3d 612 (D.C. Cir. 2020) ....... 18

Make the Road New York v. Wolf,

962 F.3d 612 (D.C. Cir. 2020) ............................. 12

Massachusetts v. EPA,

549 U.S. 497 (2007) ............................................. 19

Monsanto v. Geertson Seed Farms,

561 U.S. 139 (2010) ........................................... 3, 7

Morgan v. United States,

304 U.S. 1 (1938) ........................................... 16, 17

Moshea v. National Transportation Safety Board,

570 F.3d 349 (D.C. Cir. 2009) ............................. 15

Motor Vehicle Manufacturers Ass’n v. State Farm

Mutual Auto Insurance Co., 463 U.S. 29 (1983) . 17

New Mexico Department of Game & Fish v.

U.S. Department of the Interior,

854 F.3d 1236 (10th Cir. 2017) ........................... 10

Nielsen v. Preap,

139 S. Ct. 954 (2019) ........................................... 12

North Air Cargo v. United States Postal Service,

674 F.3d 852 (D.C. Cir. 2012) ......................... 6, 10

O.A. v. Trump,

404 F. Supp. 3d 109 (D.D.C. 2019) ..................... 20

Potomac Electric Power Co. v. ICC,

702 F.2d 1026 (D.C. Cir. 1983)............................ 14

Public Citizen v. Barshefsky,

939 F. Supp. 31 (D.D.C. 1996) ............................ 21

Public Citizen v. DOJ,

491 U.S. 440 (1989) ............................................. 19

Public Citizen v. Mineta,

340 F.3d 39 (2d Cir. 2003) ................................... 23

Public Citizen Health Research Group v. Auchter,

702 F.2d 1150 (D.C. Cir. 1983)............................ 14

Reno v. American-Arab Anti-Discrimination

Committee, 525 U.S. 471 (1999) ............................ 5

R.J. Reynolds Tobacco Co. v. FDA,

696 F.3d 1205 (D.C. Cir. 2012).......................... 6, 7

State Farm Fire & Casualty Co. v. United States

ex rel. Rigsby, 137 S. Ct. 436 (2016).................... 18

Steffel v. Thompson,

415 U.S. 452 (1974) ............................................. 12

United States v. Morgan,

307 U.S. 183 (1939) ............................................. 17

United States v. Taylor,

142 S. Ct. 2015 (2022) ......................................... 14

United Steel v. Mine Safety & Health

Administration, 925 F.3d 1279 (D.C. Cir. 2019) .. 6

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) ........................................... 5, 7

Whitman v. American Trucking Ass’n,

531 U.S. 457 (2001) ............................................. 17

Winter v. NRDC,

555 U.S. 7 (2008) ................................................. 10

Statutes and Rules

5 U.S.C. § 559 ...................................................... 11, 12

5 U.S.C. § 702 ...................................................... 10, 15

5 U.S.C. § 703 ...................................................... 15, 16

5 U.S.C. § 704 ............................................................ 15

5 U.S.C. § 705 ...................................................... 10, 15

5 U.S.C. § 706 ................................................ 13, 14, 16

5 U.S.C. § 706(1) ........................................... 10, 13, 14

5 U.S.C. § 706(2) ................................................passim

6 U.S.C. § 202(5) ......................................................... 2

8 U.S.C. § 1226 ............................................................ 2

8 U.S.C. § 1231 ........................................................ 2, 9

8 U.S.C. § 1252(f)(1) ...........................................passim

15 U.S.C. § 825l(b) .................................................... 15

28 U.S.C. § 2112(a)(3) ............................................... 24

28 U.S.C. § 2342 ........................................................ 14

49 U.S.C. § 46110 ...................................................... 15

Federal Rule of Civil Procedure 2 ............................ 15

Federal Rules of Civil Procedure 64–71................... 15

Legislative Materials

Final Report of the Attorney General’s Committee

on Administrative Procedure,

S. Doc. No. 77-8 (1941) ........................................ 16

S. Doc. 79-248 (1946) ................................................ 16

vii

Miscellaneous

Black’s Law Dictionary (11th ed. 2019) ..................... 5

James Hart, Final Report of the Attorney

General’s Committee on Administrative

Procedure, 35 Am. Pol. Sci. Rev. 501 (1941) ....... 16

Richard Murphy, 33 Federal Practice and Procedure

(Wright & Miller) (2d ed. & Apr. 2022 update) .... 6

Mila Sohoni, The Long History of the Universal

Injunction, 133 Harv. L. Rev. 920 (2020) ........... 19

INTEREST OF AMICUS CURIAE1

Amicus curiae 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. It is often

involved in litigation under the Administrative

Procedure Act (APA) either challenging or defending

agency actions.

Although Public Citizen supports Petitioners’

position on the second question presented, and thus

supports reversal of the decision below, it submits this

amicus brief to address the third question posed by the

Court: whether 8 U.S.C. § 1252(f)(1) prevents the

entry of an order under 5 U.S.C. § 706(2) to “hold

unlawful and set aside” the agency action at issue in

this case. As the brief explains, section 1252(f)(1)

would not bar an order holding unlawful and setting

aside the agency guidelines at issue, if those

guidelines were unlawful.

BACKGROUND

The Immigration and Nationality Act (INA), in a

section titled “Limit on Injunctive Relief,” states that

“regardless of the nature of the action or claim or of

the identity of the party or parties bringing the action,

no court (other than the Supreme Court) shall have

jurisdiction or authority to enjoin or restrain the

operation of the provisions of part IV of this

subchapter, … other than with respect to the

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.

application of such provisions to an individual alien

against whom proceedings under such part have been

initiated.” 8 U.S.C. § 1252(f)(1). As pertinent here,

part IV addresses “[a]pprehension and detention of

aliens,” id. § 1226, and “[d]etention and removal of

aliens ordered removed,” id. § 1231.

Under section 706(2) of the APA, a “reviewing

court shall … hold unlawful and set aside agency

action, findings, and conclusions found to be,” among

other things, “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law” or

“without observance of procedure required by law.”

As explained in the parties’ briefs, this case poses

a challenge under the APA to agency guidance issued

by the Secretary of Homeland Security, pursuant to 6

U.S.C. § 202(5), setting as “national immigration

enforcement policies and priorities” the apprehension

and removal of noncitizens who threaten national

security, public safety, and border security. Seeking

relief under section 706 of the APA, respondents argue

that the guidance violates the INA, is arbitrary and

capricious, and was issued without required

procedures. App. 102a–120a. Finding a likelihood of

success on all three claims, the district court first

issued a preliminary injunction that “ENJOINED and

RESTRAINED” the federal government from

enforcing the policies set forth in the guidance

pending the courts’ final decision. 555 F. Supp. 3d 351,

441 (S.D. Tex. 2021). Petitioners appealed but later

dismissed that appeal following the en banc Fifth

Circuit’s decision vacating a stay pending appeal that

a panel had granted. See 24 F.4th 407 (5th Cir. 2021).

The district court later issued a final judgment in

favor of respondents on their claims that the guidance

violates the INA, is arbitrary and capricious, and was

unlawfully issued without notice-and-comment

rulemaking. App. 134a–135a.2 Invoking its authority

under APA section 706(2) to “hold unlawful and set

aside agency action” that is contrary to law, arbitrary

and capricious, or issued without procedure required

by law, the court took what it recognized as the

“default approach” to “awarding relief under Section

706(2)” and vacated the agency’s action. App. 125a.

The court observed “that, by necessity, vacating a rule

applies universally.” App. 129a. The district court,

however, denied respondents’ request for final

injunctive relief, explaining that “[i]f vacatur is

sufficient to address the injury, it is improper to also

issue an injunction.” App. 131a (citing Monsanto Co.

v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010)).

The court denied declaratory relief for the same

reason. App. 133a. The court also noted that, because

it was not issuing an injunction, the bar on orders

enjoining or restraining the operation of the INA’s

removal provisions set forth in 8 U.S.C. § 1252(f)(1)

was inapplicable. App. 131a n.7.

This Court’s order denying petitioners’ application

for a stay pending appeal, treating the request as a

petition for a writ of certiorari before judgment, and

granting the petition identifies three questions for

review: the threshold issue of standing; the merits

question whether the guidance is unlawful under

either the INA or the APA; and the remedial question

The court also decided various threshold issues in

respondents’ favor, including Article III standing, whether the

guidance constitutes reviewable final agency action, and whether

the guidance is unreviewable because the subjects it addresses

are committed to agency discretion by law.

whether section 1252(f)(1)’s prohibition of orders

enjoining or restraining the operation of immigration

laws bars a district court from exercising its authority

under the APA to set aside final agency action the

court finds to be unlawful. Those questions do not

encompass one of the issues argued in the stay

application: whether section 706(2)’s authorization of

orders “setting aside” agency action means that courts

may “vacate” such actions, as courts have uniformly

done since the APA’s enactment. Petitioners, however,

argue that point again in their merits brief. See Pets.

Br. 40–44.

SUMMARY OF ARGUMENT

Section 1252(f)(1) poses no barrier to judicial

review and entry of relief under section 706 of the

APA. Section 1252(f)(1)’s plain language refers to

injunctions and restraining orders. The APA remedy

for unlawful agency action—a court order holding

unlawful and setting aside the agency action—is not

an order “enjoin[ing] or restrain[ing] operation of” a

law.

The government’s assertion that the term “set

aside” in section 706(2) does not authorize courts to

vacate unlawful regulations, orders, or other agency

actions is contrary to the APA’s text and history.

Other agency review statutes also make clear that “set

aside” refers to vacatur. In addition, the government’s

view runs counter to the long-held view of the courts,

as reflected in countless court decisions going back

decades. And it poses practical problems, making the

beneficiaries of relief difficult to discern in cases of

organizational plaintiffs, and either providing no

meaningful relief to some types of plaintiffs who

challenge agency regulations or providing them relief

not available to others. Accordingly, although the

agency action at issue here should be upheld, the

Court, if it addresses the scope of relief, should reject

the government’s view.

ARGUMENT

I. Section 1252(f)(1) poses no barrier to entry of

relief under 5 U.S.C. § 706.

“By its plain terms, and even by its title, [section

1252(f)(1)] is nothing more or less than a limit on

injunctive relief.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 481 (1999) (emphasis

added). Thus, section 1252(f)(1) “does not deprive the

lower courts of all subject matter jurisdiction over

claims brought under sections 1221 through 1232 of

the INA.” Biden v. Texas, 142 S. Ct. 2528, 2539 (2022).

Rather, it “withdraws a district court’s ‘jurisdiction or

authority’ to grant a particular form of relief,” id.:

“injunctions that order federal officials to take or to

refrain from taking actions to enforce, implement, or

otherwise carry out the specified statutory

provisions.” Garland v. Aleman Gonzalez, 142 S. Ct.

2057, 2065 (2022).

A. The relief authorized by section 706(2) is not an

injunction; it is an order vacating—that is, “hold[ing]

unlawful and set[ting] aside”—agency action. See

Black’s Law Dictionary (11th ed. 2019) (defining “set

aside” as “to annul or vacate”). Whereas an injunction

is an “extraordinary” equitable remedy as to which a

court has considerable discretion, Weinberger v.

Romero-Barcelo, 456 U.S. 305, 312 (1982), “setting

aside” is a statutory remedy under the APA that is

normally available when agency action is unlawful.

Long Island Power Auth. v. FERC, 27 F.4th 705, 717

(D.C. Cir. 2022). Indeed, the APA mandates that the

reviewing court “shall … hold unlawful and set aside”

agency action that is “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2); see Lexecon, Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998)

(stating that “shall” “normally creates an obligation

impervious to judicial discretion”). Although the APA

elsewhere grants courts discretion to withhold the

remedy otherwise required by section 706, see 5 U.S.C.

§ 702, exercise of that discretion is appropriate only in

carefully defined circumstances. See Allied-Signal,

Inc. v. NRC, 988 F.2d 146, 151 (D.C. Cir. 1993).3

Thus, as the D.C. Circuit has stated, when a

reviewing court determines that agency regulations

are unlawful, “[t]he ordinary practice is to vacate.”

United Steel v. Mine Safety & Health Admin., 925 F.3d

1279, 1287 (D.C. Cir. 2019) (citing 5 U.S.C. § 706(2)).

And when a court has fulfilled its “obligation to ‘set

aside’ [an] unlawful regulation,” injunctive relief is

ordinarily unnecessary, R.J. Reynolds Tobacco Co. v.

FDA, 696 F.3d 1205, 1222 (D.C. Cir. 2012)—indeed, it

is “anomalous.” N. Air Cargo v. U.S. Postal Serv., 674

F.3d 852, 861 (D.C. Cir. 2012). Reynolds, for example,

vacated a district court’s injunction against the agency

See also Richard Murphy, 33 Federal Practice and

Procedure (Wright & Miller) § 8381 (2d ed. & Apr. 2022 update)

(“Generally speaking, where a petitioner persuades a reviewing

court that an agency’s action is defective due to errors of fact, law,

or policy, the court should vacate that action and remand to the

agency for further proceedings. Along these lines, § 706(2) of the

Administrative Procedure Act … instructs courts to ‘hold

unlawful and set aside’ agency action that falls short of the

various listed review standards. This approach enables a

reviewing court to correct error but, critically, also avoids judicial

encroachment on agency discretion.” (footnotes omitted)).

and held that the proper remedy was vacatur of the

regulation at issue. 696 F.3d at 1222.4

This Court, too, has distinguished the APA remedy

from the remedy of an injunction. In Monsanto v.

Geertson Seed Farms, this Court described the setaside remedy of section 706 as “less drastic” than the

“drastic and extraordinary remedy” of an injunction.

561 U.S. at 165–66 (“An injunction is a drastic and

extraordinary remedy, which should not be granted as

a matter of course. If a less drastic remedy (such as

partial or complete vacatur of [the agency’s] deregulation decision) was sufficient to redress respondents’

injury, no recourse to the additional and extraordinary relief of an injunction was warranted.” (citation

omitted)).

Further, the standard for issuing an injunction is

meaningfully different from the standard for setting

aside agency action under section 706. “The Court has

repeatedly held that the basis for injunctive relief in

the federal courts has always been irreparable injury

and the inadequacy of legal remedies.” Weinberger,

456 U.S. at 312 (citing cases). No such findings are

necessary to set aside agency action under the APA.

Rather, the standard for setting aside final agency

action is that the reviewing court has “found [the

action] to be … arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law,”

among other possibilities. 5 U.S.C. § 706(2); e.g., Dep’t

of Homeland Security v. Regents of the University of

California, 140 S. Ct. 1891, 1901 (2020) (stating “we

Although part of Reynolds’s merits analysis was later

overruled, see Am. Meat Inst. v. USDA, 760 F.3d 18 (D.C. Cir.

2014), that later decision had no effect on the remedial analysis.

conclude that the Acting Secretary did violate the

APA, and that the rescission must be vacated”).

B. The government argues that vacatur “enjoin[s]

or restrain[s]” the operation of the INA. See Pets. Br.

44. But the consequences of an order vacating an

agency action are meaningfully different from those of

an order (like the preliminary injunction improperly

entered by the district court in this case) “enjoin[ing]

or restrain[ing] the operation of” the specified INA

provisions. 8 U.S.C. § 1252(f)(1). Although an order

setting aside an agency action nullifies it, the order

(unlike an injunction) neither compels nor prohibits

further action on pain of contempt sanctions. See

Armstrong v. Exec. Office of the President, 1 F.3d 1274,

1289 (D.C. Cir. 1993) (holding that a judgment

declaring agency action unlawful is not enforceable by

contempt).

Put another way, an order vacating an agency rule

does not “tell[] someone what to do or not to do,”

Aleman Gonzalez, 142 S. Ct. at 2064 (quoting Nken v.

Holder, 556 U.S. 418, 428 (2009)), and does not

“prevent” the agency “from doing something,” id.

(quoting Black’s Law Dictionary 784 (6th ed. 1990)).

Rather, it nullifies a source of authority on which the

agency might otherwise rely to justify a course of

action, without directly barring the course of action

itself, which the agency may engage in if otherwise

lawful. That is, the court’s order setting aside an

agency regulation or order operates to render that

regulation or order a nullity; its object is not the

ongoing “actions of officials or other persons” who

implement the agency’s governing statutes. Id.

By contrast, in Aleman Gonzalez, the Court

explained that injunctions requiring the agency to

provide bond hearings for a class “enjoin or restrain

the operation” of section 1231(a)(6) of the INA

“because they require officials to take actions that (in

the Government’s view) are not required by

§ 1231(a)(6) and to refrain from actions that (again in

the Government’s view) are allowed by § 1231(a)(6).

Those injunctions thus interfere with the Government’s efforts to operate § 1231(a)(6).” Aleman

Gonzalez, 142 S. Ct. at 2065. An order vacating an

agency regulation, policy, or guideline does not

similarly compel the agency to take or refrain from

taking any action authorized by or prohibited by its

authority under the INA.5

That an order setting aside or vacating an action is

distinct from one enjoining or restraining a party is

confirmed by the “common understanding of judges,”

who are the decisionmakers “to whom [section 706] is

addressed.” Comcast Corp. v. FCC, 579 F.3d 1, 10

(D.C. Cir. 2009) (Randolph, J., concurring) (“‘Set aside’

means vacate, according to the dictionaries and the

common understanding of judges, to whom the

provision is addressed.”). Tellingly, the APA adopts

judicial usage by incorporating a term commonly used

to describe the action that an appellate court takes

with respect to an order or judgment improperly

entered by a lower court. In such circumstances, the

appellate tribunal “sets aside,” or vacates, the lower

court’s action. Indeed, those terms are typically used

to describe an appellate court’s vacatur of an

5 Of course, the legal reasoning a court used to vacate an

agency action might indicate that some future agency action or

course of action would be unlawful for the same reason, but

neither the reasoning nor the vacatur would directly enjoin or

restrain such action.

injunction improperly issued by a lower court.6 But no

one would say that, in such circumstances, the

appellate court has issued an injunction or restraining

order against the lower court, let alone that it has

enjoined or restrained the operation of a law. The use

of the same language to describe the ordinary remedy

in APA cases signifies that, under the APA, courts

function as “appellate tribunal[s]” in applying the

APA’s standard of review and set-aside remedy to

agency action. N. Air Cargo, 674 F.3d at 861.

To be sure, injunctive relief that goes beyond

setting aside an unlawful agency action may be

available in an APA action when the requirements for

issuance of such relief are satisfied. The APA

expressly contemplates that, in some circumstances,

an “injunctive decree” may be available, 5 U.S.C.

§ 702; it also provides for the issuance of preliminary

equitable relief when necessary “to prevent

irreparable injury,” id. § 705, and allows orders to

“compel” agency action in appropriate circumstances,

id. § 706(1). Injunctive relief under the APA, however,

is subject to traditional equitable constraints, see, e.g.,

Cobell v. Kempthorne, 455 F.3d 301, 307 (D.C. Cir.

2006), including those governing the issuance of

preliminary and permanent injunctions, see Winter v.

NRDC, 555 U.S. 7, 20 (2008). That the APA addresses

the relief of setting aside agency action separately,

and using different terms, from its references to

6 See, e.g., FTC v. Consumer Def., LLC, 926 F.3d 1208, 1211–

12 (9th Cir. 2019) (stating the standard for “set[ting] aside” a

preliminary injunction); N. Mex. Dep’t of Game & Fish v. U.S.

Dep’t of the Interior, 854 F.3d 1236, 1240 (10th Cir. 2017)

(“vacat[ing] the district court’s entry of a preliminary

injunction”); Ala. v. U.S. Army Corps of Eng’rs, 424 F.3d 1117,

1136 (11th Cir. 2005) (“vacat[ing]” a district court injunction).

injunctive decrees, orders granting preliminary relief

to prevent irreparable injury, and orders compelling

agency action underscores that the set-aside remedy

is distinct from orders enjoining agency action.7

Another APA provision, 5 U.S.C. § 559, further

reinforces that an order setting aside unlawful agency

action under section 706(2) of the APA does not “enjoin

or restrain” the operation of the immigration laws

and, therefore, that the plain language of section

1252(f)(1) does not encompass such orders. Section

559 provides that a “[s]ubsequent statute may not be

7 In support of its argument that “enjoin or restrain” may

include an order of vacatur, the government cites Aberdeen &

Rockfish Railroad Co. v. Students Challenging Regulatory

Agency Procedures, 422 U.S. 289 (1975), to argue that this Court

exercised jurisdiction over appeals from orders of vacatur based

on a statute providing for appellate jurisdiction over injunctions.

Pets. Br. 46. The government overstates the point: There, the

Court considered appellate jurisdiction under a statute that

authorized a 3-judge court to grant “[a]n interlocutory or

permanent injunction restraining the enforcement, operation or

execution, in whole or in part, of any order of the Interstate

Commerce Commission” (ICC). Aberdeen & Rockfish, 422 U.S. at

307. In that context, the Court found no “jurisdictional difference

in ICC cases between ‘injunctions’ and orders ‘setting aside’ ICC

determinations.” Id. at 307 n.11 (emphasis added). The facts of

the case illustrated the basis for the conclusion: Although the

appellees claimed “that since the court below declined to restrain

collection of the increased rates, its order was not an injunction

but a declaratory judgment,” the district court had “directed the

ICC to perform certain acts” and its “order was plainly cast in

injunctive terms.” Id. at 307. Specifically, “[t]he order ‘directs’ the

ICC to reopen [the rate proceeding] and to conduct further

proceedings which ‘must’ include preparation of an impact

statement dealing with enumerated issues.” Id. The district court

too viewed the relief as injunctive: “In declining to restrain

collection of the rates, the court said it was declining to grant ‘to

plaintiffs additional injunctive relief.’” Id.

held to supersede or modify … chapter 7 [of title 5] …

except to the extent that it does so expressly.” Chapter

7 includes section 706, and section 1252(f)(1) was

enacted decades after the APA. But section 1252(f)(1)

contains no express indication of intent to limit or

modify the remedial authority granted by section 706.

Accordingly, section 559, together with the more

general strong presumption that judicial review of

agency action is available, see, e.g., Regents, 140 S. Ct.

at 1905, forecloses any argument that section

1252(f)(1) impliedly limits APA relief.

Further, in Nielsen v. Preap, 139 S. Ct. 954, 962

(2019), this Court held that section 1252(f)(1) posed no

bar on judicial authority to issue declaratory relief,

even where the bar on injunctive relief might apply.

Accord Make the Road N.Y. v. Wolf, 962 F.3d 612, 635

(D.C. Cir. 2020) (“Section 1252(f) prohibits only

injunctions against ‘the operation of the provisions of

part IV of this subchapter’ as amended …. It does not

proscribe issuance of a declaratory judgment[.]”). That

point reflects the more general principle that a bar on

injunctive relief does not ordinarily strip the courts of

authority to issue other forms of relief. See Steffel v.

Thompson, 415 U.S. 452, 472 (1974) (“[T]he only

occasions where this Court has ... found that a

preclusion of injunctive relief inevitably led to a denial

of declaratory relief have been cases in which

principles of federalism militated altogether against

federal intervention in a class of adjudications.”);

Brito v. Garland, 22 F.4th 240, 252 (1st Cir. 2021)

(quoting Steffel and noting that, “[b]ecause section

1252(f)(1) concerns federal courts’ ability to enjoin the

operation of federal law, it does not implicate

federalism concerns”). Notably, declaratory relief

typically is integral to relief under section 706, which

instructs courts to “hold unlawful” and “set aside”

agency action in specified circumstances. 5 U.S.C.

§ 706(2).

II. The government’s notion that section 706(2)

does not authorize vacatur is contrary to the

APA’s text, its history, and the long-held view

of the courts.

Although courts, including this Court, have

consistently stated otherwise, see infra pp.17–18 &

n.9, the government argues that section 706(2) does

not authorize orders vacating unlawful agency

actions—and, indeed, “does not pertain to remedies at

all,” Pets. Br. 40—but simply “direct[s] the reviewing

court to disregard unlawful ‘agency action, findings,

and conclusions’ in resolving the case before it,” id.

The government cites no judicial decision supporting

its interpretation of section 706(2). And this Court’s

third question appears to assume that the district

court’s vacatur order was “an order to ‘hold unlawful

and set aside’ the Guidelines under 5 U.S.C. § 706(2),”

and asks only if it was barred by section 1252(f)(1), not

whether it was authorized by section 702(2). As the

Court’s question suggests, the government’s

argument is mistaken, for several reasons.

First, the government’s argument is not supported

by the text of section 706. Section 706 has two parts

that speak to two different types of actions that “[t]he

reviewing court shall” take: It shall (1) “compel agency

action unlawfully withheld or unreasonably delayed,

and” (2) “hold unlawful and set aside agency actions,

findings, and conclusions found to be” problematic on

one of the specified bases. Although the government

argues that section 706(2) does not address remedy, it

makes no attempt to reconcile its reading with 706(1),

which plainly states the judicial remedy for unlawfully

withheld or delayed agency action: an order

compelling the action.8 Section 706(1) belies the

government’s contention that section 706 does not

address remedy. See also United States v. Taylor, 142

S. Ct. 2015, 2023 (2022) (noting “our usual rule of

statutory interpretation that a law’s terms are best

understood by ‘the company [they] kee[p]’” (alteration

in original)).

That the statutory term “set aside” speaks to

remedy is further confirmed by the use of that same

term in other statutes. For instance, 28 U.S.C. § 2342

gives the courts of appeals “exclusive jurisdiction to

enjoin, set aside, [or] suspend (in whole or in part)”

final orders, rules, and regulations of specified

agencies. Sandwiching “set aside” between two

indisputable remedies—“enjoin” and “suspend”—

reflects that, in the context of court review of agency

action, Congress uses the term “set aside” to refer to a

8 See, e.g.,

Biodiversity Legal Found. v. Badgley, 309 F.3d

1166, 1178 (9th Cir. 2002) (in a case under § 706(1), ordering the

agency to complete the delayed action by a date certain); Forrest

Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1998) (in a case

under § 706(1), stating that when an agency fails to act by a

statutory deadline, it has “unlawfully withheld” the action and

the court must compel the agency to act); In re Int’l Chem.

Workers Union, 958 F.2d 1144, 1150 (D.C. Cir. 1992) (in a case

under § 706(1), imposing a deadline for issuance of an agency

rule unreasonably delayed); Potomac Elec. Power Co. v. ICC, 702

F.2d 1026 (D.C. Cir. 1983) (in a case under § 706(1), holding that

the agency had unreasonably delayed disposition of the

company’s complaint and ordering the agency to reach a final

decision within 60 days); Pub. Citizen Health Res. Group v.

Auchter, 702 F.2d 1150, 1158–59 (D.C. Cir. 1983) (in a case under

§ 706(1), ordering the agency to promulgate a notice of proposed

rulemaking within 30 days).

remedy. Beecham v. United States, 511 U.S. 368, 371

(1994) (“That several items in a list share an attribute

counsels in favor of interpreting the other items as

possessing that attribute as well.”).

Likewise, 49 U.S.C. § 46110 authorizes courts “to

affirm, amend, modify, or set aside any part of” certain

orders of the Transportation Security Administration

and the Federal Aviation Administration. And 15

U.S.C. § 825l(b) authorizes courts reviewing orders of

the Federal Energy Regulatory Commission “to

affirm, modify, or set aside such order[s] in whole or

in part.” In each, the term “set aside” appears in a list

of remedies and plainly refers to a remedy—the

remedy of vacating the order (which is the opposite of

affirming it or leaving it in place as amended or

modified). See, e.g., Moshea v. Nat’l Transp. Safety

Bd., 570 F.3d 349, 350 (D.C. Cir. 2009) (“grant[ing]

petition for review, vacat[ing] the Board’s decision,

and remand[ing]” for further proceedings); Col. Gas

Transm’n Corp. v. FERC, 404 F.3d 459, 463 (D.C. Cir.

2005) (“grant[ing] the petition and vacat[ing] the

[agency] orders”).

The government’s notion that the APA does not

address remedy in section 706, but instead in section

703, titled “Form and venue of proceeding,” is also

untethered to both the APA’s text and its structure.

“Form of proceeding” is not a term used to refer to

remedy. Compare Fed. R. Civ. P. 2 (addressing “form

of action”), with id. Rules 64–71 (addressing

“remedies”). Furthermore, the APA’s judicial review

provisions follow a clear structure: Section 702

addresses the parties (who can sue and be sued);

section 703 addresses the form and venue of the suit;

section 704 describes the types of agency action over

which one can sue; section 705 addresses interim

remedies; and section 706 addresses the scope of

judicial review and final remedies. The government’s

notion, by reading the “form of proceeding” in section

703 to address remedy, destroys that logical

progression. Moreover, the government is incorrect in

asserting that the legislative history “repeatedly

refers to Section 703 as governing remedies.” Pets. Br.

42 (citing S. Doc. No. 79-248 at 36–37 (1946)). Rather,

the cited document discusses the “Form and Venue of

Action” provision in terms of the “methods of review,”

S. Doc. 79-248 at 36–37, while explaining that the

“Scope of Review” provision authorizes courts to

“compel” and to “invalidat[e]” agency action, and

rejecting the notion that “invalidation of agency action

‘short of statutory right’ is something new.” Id. at 40.

Second, the government’s view is inconsistent with

the 1941 Final Report of the Attorney General’s

Committee on Administrative Procedure, S. Doc. No.

77-8 (1941) (1941 Report)—a report described at the

time as “the most thorough and comprehensive study

ever made of Federal administrative procedure.”

James Hart, Final Report of the Attorney General’s

Comm. on Admin. Pro., 35 Am. Pol. Sci. Rev. 501, 501

(1941). As the 1941 Report makes clear, courts have

long considered challenges to both the “legality of

applying a regulation to a particular objector” and

“the validity of the entire regulation.” 1941 Report at

116. In the latter instance, “[a] judgment adverse to a

regulation results in setting it aside.” Id. at 117.

For example, Morgan v. United States, 304 U.S. 1

(1938), cited in 1941 Report at 88, challenged an order

by the Secretary of Agriculture fixing maximum rates

to be charged at the Kansas City Stockyards. The core

of the case was the plaintiffs’ allegation that the

Secretary of Agriculture had adopted the rates

without complying with the statute’s procedural

requirements and that the order was arbitrary and

unsupported by substantial evidence. Morgan, 304

U.S. at 14. The Court agreed that the agency’s process

was “defective” and held the agency’s action “invalid.”

Id. at 21. In a follow-on case, the Court explained that

its earlier decision had “set aside” the rates for “failure

of the Secretary to follow the procedure prescribed by

the statute.” United States v. Morgan, 307 U.S. 183,

195 (1939). The Court clearly meant that the earlier

decision had nullified the unlawful rates, not that it

had “disregarded” them.

Third, the government’s reading would call into

question decades of court decisions, from this Court,

courts of appeals, and district courts across the

country—including seminal cases of administrative

law. See, e.g., Regents, 140 S. Ct. at 1901 (holding that

the challenged agency action must be vacated where

it violated the APA); Dep’t of Commerce v. New York,

139 S. Ct. 2551, 2564, 2567, 2568 (2019) (affirming a

district court’s decision that “vacated” the challenged

agency action and using “set aside” interchangeably

with “vacate”); Whitman v. Am. Trucking Ass’n, 531

U.S. 457, 471 n.4 (2001) (stating that if allegations

that the EPA violated rulemaking requirements

“could be proved, it would be grounds for vacating the

[agency action], because the Administrator had not

followed the law”); Motor Vehicle Mfrs. Ass’n v. State

Farm Mutual Auto Ins. Co., 463 U.S. 29, 41 (1983)

(clarifying that it is an “agency’s action” itself which

must be set aside if it is contrary to or in excess of

agency authority); Abbott Labs. v. Gardner, 387 U.S.

136, 155 (1967) (explaining that “pre-enforcement

challenge” by regulated parties “is calculated to speed

enforcement” because “[i]f the Government prevails, a

large part of the industry is bound by the decree; if the

Government loses, it can more quickly revise its

regulation”).9 By contrast, the government cites no

decision of a court at any level in the federal system in

the 76-year history of the APA that adopts its

construction of the term “set aside” in section 706(2).

Fourth, the government’s suggestion that section

706(2) may authorize vacatur but only as to the

parties to the particular case, Pets. Br. 44 n.6 (citing

U.S. Application 37–38), “is nowhere in the statute,”

as then-Judge Jackson has explained. Make the Road

New York v. McAleenan, 405 F. Supp. 3d 1, 67 (D.D.C.

2019), rev’d on other grounds, 962 F.3d 612 (D.C. Cir.

2020); see also State Farm Fire & Casualty Co. v.

United States ex rel. Rigsby, 137 S. Ct. 436, 444 (2016)

(rejecting reading that has “no textual indication in

the statute”). Importantly, such an atextual limitation

9 See, e.g., Allina Health Serv. v. Sebellius, 746 F.3d 1102,

1111 (D.C. Cir. 2014) (stating that “vacatur is the normal

remedy” for an APA violation); Ill. Pub. Telecomm. Ass’n v. FCC,

123 F.3d 693, 693 (D.C. Cir. 1997) (stating that “unsupported

agency action normally warrants vacatur”); see Harmon v.

Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a

reviewing court determines that agency regulations are

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

that their application to the individual petitioners is

proscribed.”); Int’l Ladies’ Garment Workers’ Union v. Donovan,

722 F.2d 795, 799 (D.C. Cir. 1983) (“Because we find that the

Secretary’s decision was arbitrary and capricious, we reverse the

decision of the District Court and vacate the action of the

Secretary rescinding restrictions on the employment of

homeworker.”); Action on Smoking & Health v. Civil Aeronautics

Bd., 713 F.2d 795, 797 (D.C. Cir. 1983) (“To ‘vacate,’ as the

parties should well know, means ‘to annul; to cancel or rescind;

to declare, to make, or to render, void; to defeat; to deprive of

force; to make of no authority or validity; to set aside.”’ (emphasis

added)).

is not required by Article III. “The Court has long

relied upon historical practice by the federal courts to

lend meaning to the notoriously terse phrases of

Article III.” Mila Sohoni, The Long History of the

Universal Injunction, 133 Harv. L. Rev. 920, 269

(2020).10 And here, the long history of federal courts

vacating agency action held unlawful, see supra

pp.17–18 & n.9, is indisputable. That the relief may

benefit persons other than the plaintiff does not mean

that it is barred by Article III: Article III does not

authorize, let alone require, courts to deny a

statutorily authorized form of relief that redresses a

plaintiff’s injury merely because the relief will also

benefit others who suffer a comparable injury. See

Massachusetts v. EPA, 549 U.S. 497, 522 (2007); FEC

v. Akins, 524 U.S. 11, 23–25 (1998); Pub. Citizen v.

DOJ, 491 U.S. 440, 449–50 (1989).

Further, the suggestion that section 706(2) may

authorize vacatur, but only as to the parties to the

particular case, is wholly unworkable. In terms of

judicial efficiency, the problems with the government’s suggestion are illustrated by Department of

Homeland Security v. Regents of the University of

California. In Regents, this Court considered a

10 Sohini at 926 n.37 (“See, e.g., Tutun v. United States, 270

U.S. 568, 576 (1926); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309

(1803); see also NLRB v. Noel Canning, 134 S. Ct. 2550, 2560

(2014) (‘[T]his Court has treated practice as an important

interpretive factor even when the nature or longevity of that

practice is subject to dispute, and even when that practice began

after the founding era.’). See generally Richard H. Fallon, Jr., The

Many and Varied Roles of History in Constitutional

Adjudication, 90 Notre Dame L. Rev. 1753, 1759–1802 (2015)

(using cases from the federal courts canon to elaborate on the

relevance of historical practice to constitutional meaning).”).

challenge to the Acting Secretary of Homeland

Security’s rescission of the Deferred Action for

Childhood Arrivals (DACA) program. The Court

determined that “the rescission must be vacated.” 140

S. Ct. at 1901. Under the government’s reading,

however, the APA did not authorize the Court to

vacate the agency’s action. Instead, it could “set aside”

the rescission only as to the parties to that case. As to

the thousands of DACA recipients around the country

who were not parties to the case, the rescission would

remain in effect, requiring each recipient separately

to sue because DACA’s rescission would remain in

effect as to them.11

The government’s reading also poses intractable

practical problems. As Judge Moss has explained:

As a practical matter, for example, how could this

Court vacate the Rule with respect to the

organizational plaintiffs in this case without

vacating the Rule writ large? What would it mean

to “vacate” a rule as to some but not other members

of the public? What would appear in the Code of

Federal Regulations? Fortunately, the Court need

not engage in such logical gymnastics because the

language of the APA and the controlling D.C.

Circuit precedent are unambiguous.

O.A. v. Trump, 404 F. Supp. 3d 109, 153 (D.D.C. 2019).

For instance, when the Chamber of Commerce

successfully sued to challenge a Department of Labor

11 In light of the government’s argument here that courts lack

authority under the APA to vacate agency rules and can only bar

enforcement of the rule as to the specific plaintiffs, the courts

could not rely on the government to respond to a ruling that

“holds unlawful” an agency action by withdrawing the unlawful

action or committing not to apply it to non-parties to the case.

rule concerning fiduciary obligations of financial

service providers, the Fifth Circuit relied on section

706(2) to “vacate the rule.” Chamber of Commerce v.

Dep’t of Labor, 885 F.3d 360, 388 (5th Cir. 2018).

Under the government’s view, the court had authority

to vacate the rule only as to the plaintiff—the

Chamber. The Chamber, however, is a membership

organization.

Presumably,

then,

under

the

government’s approach, the rule could then not be

applied to companies that were members of the

Chamber but could be applied to other companies.

Both the agency and the many current and future

investors affected by the rule would thus need a

Chamber membership list to know which companies

were bound by the rule and which were not. The

government’s brief does not address the question

whether the “set aside” in such a case would apply to

then-current members only or to future members as

well. Because trade groups often bring APA

challenges on behalf of their members, the problems

posed by the government’s reading would arise

frequently. See, e.g., Iowa League of Cities v. EPA, 711

F.3d 844, 854 (8th Cir. 2013) (vacating EPA

requirements concerning water treatment processes

at municipally owned sewer systems).

Similarly, when membership organizations sued

under section 706(2) to challenge a U.S. Trade Representative order unlawfully closing certain meetings to

the public, in violation of the Federal Advisory

Committee Act, see Pub. Citizen v. Barshefsky, 939 F.

Supp. 31, 38 (D.D.C. 1996), the court vacated that

order. Under the government’s view, however, the

result should have been that only the order closing the

meetings was “disregarded” as to the plaintiffs or

perhaps their members only, but that the order would

continue to authorize closing the meetings to everyone

else.

In addition, the government’s theory would have a

significant impact on the standing of potential APA

plaintiffs by eliminating redressability in many cases.

See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)

(stating that standing requires that the injury caused

by agency action can be redressed by a favorable court

decision). Under the Court’s longstanding view that

“set aside” in section 706(2) means “vacate” and

authorizes courts to vacate challenged agency action,

non-regulated entities, including individuals and

organizations, may have standing to challenge rules

under section 706(2).12 See Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 890 n.2 (1990) (stating that final

agency action (there, a “land withdrawal review program”) “can of course be challenged under the APA by

a person adversely affected—and the entire [program]

insofar as the content of that particular action is

concerned, would thereby be affected”). The government’s view, however, would undercut the redressability prong of standing for non-regulated entities.

For example, environmental groups had standing to

challenge under section 706(2) a final rule of the Fish

and Wildlife Service that removed a population of gray

wolves from the endangered species list. Humane

Soc’y of U.S. v. Kempthorne, 579 F. Supp. 2d 7, 9, 10

n.4 (D.D.C. 2008). Ruling in favor of the groups, the

12 See Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S.

333, 343 (1977) (holding that a membership organization may

sue on behalf of its members where the members would otherwise

have standing to sue in their own right; the interests that the

organization seeks to protect are germane to the its purpose; and

neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit).

court vacated the unlawful rule. Id. at 8. In the

government’s view, however, the judicial remedy

could go no further than the plaintiffs. A remedy

reinstating the wolves to the list only as to the

plaintiffs (who posed no threats to the wolves), however, would have been meaningless. Redress required

vacatur of the rule.

Likewise, under the government’s view, the

Business Roundtable would have lacked standing in

Business Roundtable v. SEC, 902 F.2d 406 (D.C. Cir.

1990). There, the rule at issue barred national

security exchanges from listing stock of corporations

that nullified, restricted, or disparately reduced per

share voting rights of common shareholders, and the

D.C. Circuit vacated the rule as in excess of the

agency’s authority. Id. at 407. But the members of the

plaintiff organization were individuals, see https://

www.businessroundtable.org/about-us, not companies

regulated under the rule. Therefore, if the court could

have vacated the rule only with respect to its application to the plaintiff, the plaintiff would have had no

redress at all because the rule would continue to apply

to the regulated entities.

That said, the government acknowledges that such

relief as is “necessary to provide complete relief to the

plaintiffs,” U.S. Application 32–33, may be permissible. Perhaps, then, the government would agree that

a court can vacate an unlawful rule where the plaintiff

is a non-regulated party that will not have meaningful

relief absent issuance of a new final rule. E.g., Pub.

Citizen v. Mineta, 340 F.3d 39, 42 (2d Cir. 2003) (in

challenge by consumer groups to agency standard for

tire pressure monitoring systems for passenger

vehicles, concluding “that the rule is both contrary to

the intent of the TREAD Act and arbitrary and

capricious under the APA,” and therefore “vacat[ing]

the rule, and remand[ing] for further rulemaking

proceedings”). Reading section 706(2) to allow vacatur

of an unlawful rule only when the plaintiff is not a

regulated party has no basis in the statutory text.

Finally, the government’s stay application made

the important point that the APA allows one court to

vacate a rule nationwide, even where other courts

have upheld the rule. See U.S. Application 34. Yet the

government’s argument would bar vacatur even

where petitions for review of an agency rule have been

consolidated in a single court. See 28 U.S.C.

§ 2112(a)(3); e.g., In re MCP No. 165, OSHA, Interim

Final Rule: Covid-19 Vaccination and Testing;

Emergency Temporary Standard, No. 21-7000 (6th

Cir.) (consolidated proceeding on 33 petitions for

review). Whether or not one sympathizes with the

government’s point, it is not a reason to rethink the

relief provided in countless court decisions in decades

of APA litigation before this Court and lower courts.

Instead, the government’s concern is properly brought

to Congress.

CONCLUSION

For the foregoing reasons, section 1252(f)(1) does

not prevent entry of an order “hold[ing] unlawful and

set[ting] aside” agency action under 5 U.S.C. § 706.

This Court should nonetheless reverse the decision

below because the Guidelines do not violate the APA,

as explained in the Brief for the Petitioners.

Respectfully submitted,