HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.usfed/remvacr0001 and id is 1 raw text is:
AD INISTRATIVE1 CONFREC O' TH UNTE STATES(1,G
Administrative Conference Recommendation 2013-6
Remand Without Vacatur
Adopted December 5, 2013
Remand without vacatur is a judicial remedy that permits agency orders or rules to
remain in effect after they are remanded by the reviewing court for further agency
proceedings. Traditionally, courts have reversed and set aside agency actions they have found
to be arbitrary and capricious, unlawful, unsupported by substantial evidence, or otherwise in
violation of an applicable standard of review. Since 1970, however, the remedy of remanding
without vacating the agency decision has been employed with increasing frequency. It has now
been applied in more than seventy decisions of the Court of Appeals for the District of
Columbia Circuit involving over twenty federal agencies and encompassing a variety of
substantive areas of law including air pollution control, telecommunications, and national
security.'
The Administrative Conference conducted a study of remand without vacatur that
examined existing scholarship on the remedy as well as its application by courts in recent years.
These recommendations and the supporting Report examine the legality and application of
remand without vacatur in cases involving judicial review of agency actions. The Conference
accepts the principle that remand without vacatur is within the court's equitable remedial
authority. It recognizes and approves of at least three general circumstances in which remand
without vacatur may be appropriate. Finally, it offers advice to courts that are considering
employing the remedy and to agencies responding to remands.
1 Stephanie J. Tatham, The Unusual Remedy of Remand Without Vacatur, Appendix A (Report to the Administrative
Conference of the United States, Nov. 14, 2013) [hereinafter Tatham Report]. It has also been applied on review of
agency action in the Courts of Appeals for the Federal, First, Third, Fifth, Eighth, Ninth, and Tenth Circuits. Id. at
26-28.
1](ViewImageLocal?handle=hein.usfed/remvacr0001&div=1&collection=&method=preview&ext=.png&size=3)