Blast from the past: Solicitor General Clement’s brief on nationwide injunctions and the APA
In Summers v. Earth Island Institute, decided in 2009, the U.S. Supreme Court granted certiorari with four questions presented. Number four has acute relevance today: “Whether the court of appeals erred in affirming the nationwide injunction issued by the district court.” The Court didn’t reach that question, however, because of its resolution of the other questions presented. But the Solicitor General’s office did file a brief that addressed this question, with Paul Clement as the counsel of record. This brief is worth reintroducing to the discussion of the national injunction and the APA–especially now that there is such a lively scholarly debate about whether the APA codifies or creates a “universal vacatur” remedy.
(For new entrants into that debate on the APA, see this piece by Jonathan Adler, arguing no at the Notice & Comment blog of the Yale Journal on Regulation; and this piece for a Notre Dame Law review symposium by Ronald Levin, which argues that the APA is a framework statute, and its evolution is supposed to be guided by the courts, and the post-APA development of universal vacatur is one such salutary evolution.)
Here is the relevant section of the SG’s brief in Summers v. Earth Island Institute:
- THE NATIONWIDE INJUNCTION WAS IMPROPER
As a final manifestation of its conflation of the moot as-applied challenge and the unripe facial challenge, the district court concluded that its injunction should be given nationwide effect, on the ground that, “[a]lthough this action originally challenged the Burnt Ridge Project in California, the case evolved from challenging a specific project in a specific forest to challenging regulations, applicable nationwide, promulgated by the Forest Service.” Pet. App.32a. The court of appeals held that the nationwide injunction was “compelled by the text of the[APA],” and specifically by 5 U.S.C. 706, which directs the reviewing court to “set aside” agency action that is found to be unlawful. See Pet. App. 21a. That holding is erroneous.
- The Text Of The APA Does Not Support, Let Alone Compel, The Nationwide Injunction Entered In This Case
The APA provides that “[t]he reviewing court shall * * * (2) hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 706. In construing that language to require a nationwide injunction against enforcement of 36 C.F.R. 215.4(a) and 215.12(f), the court ofappeals implicitly assumed that the relevant “agency action[s]” to be “h[e]ld unlawful” and “set aside” were the regulations themselves. That is incorrect.
The term “agency action” in 5 U.S.C. 706 refers back to 5 U.S.C. 704, which authorizes judicial review of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” See pp. 19-21, supra. Where (as here) no special statutory provision “permit[s] broad regulations to serve as the ‘agency action,’and thus to be the object of judicial review directly,” NWF, 497 U.S. at 891, the final agency action that is the proper subject of judicial review (and the proper subject of any injunction) is the agency decision approving a site-specific project, not the regulation itself. If the court finds that a regulation on which the agency relied in rendering that decision is unlawful (and that its application was not harmless error, see National Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2530 (2007)), the proper relief is for the court to hold the site-specific decision unl
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