To Vacate or Not to Vacate? How to Handle Unlawful but Potentially Redeemable Agency Action

In a concurring opinion issued Friday [pdf], Judge Randolph continues his campaign to standardize the D.C. Circuit’s inconsistent disposition of administrative orders that it holds unlawful. Sometimes the court vacates such orders, but sometimes it simply remands them–leaving the order in place while the agency performs whatever reconsideration the court demands. Judge Randolph says the Administrative Procedure Act’s instruction to “hold unlawful and set aside” the agency action requires vacatur. Otherwise, the unlawful order remains in force, and regulated entities usually must continue to comply while the order is under reconsideration.

Why is the court so inconsistent in its disposition of unlawful agency orders? Judge Randolph suggests carelessness might have something to do with it:

One explanation is that the court simply has not given any particular thought to this remedial wrinkle. There is some evidence to support this theory. In other failure-to-explain cases, we have vacated the Board’s order in addition to remanding. Yet there is no difference between these decisions and those in which the court seems to order only a remand. No opinion of our court has ever tried to reconcile the two lines of cases or even recognized the split.

Another possibility is that panels decide whether or not to vacate unlawful orders based on the likelihood that the agency will be able to fix the problem the court has identified. If an agency can reinstate its prior decision by simply explaining itself more fully, a panel may decide that vacating the order would only increase uncertainty for regulated entities. Whether calculations of this sort would be consistent with the APA is another question.

Judge Ginsburg’s majority opinion does not explain why he and Judge Edwards opted to remand without vacating, except to quote another case’s statement that “we often remand with instructions to remedy the misapplication” of Board precedent.

Although Judge Randolph would have vacated before remanding, he pointed out that the majority’s remand-only disposition does little harm when an NLRB order is at issue:

Unlike the orders of other administrative agencies, Board orders are not self-executing. . . .  The court’s judgment enforcing the Board’s order, and only that judgment, mandates obedience. . . . In the limited universe of the National Labor Relations Act, therefore, the grant of a petition for review and the denial of a cross-application for enforcement may be viewed as the equivalent of setting aside the Board’s order. Or one may say that in such cases the court’s failure to vacate the Board’s order constitutes harmless error.

The panel was in agreement on the merits.  The NLRB held that an employer had engaged in an unfair labor practice by changing its employee benefits program during the interval between expiration of one collective bargaining agreement and commencement of another.  But recent NLRB precedent permits unilateral changes to benefit plans when the changes are in line with “consistent, established past practice.” And the employer had made similar changes every year, while the CBAs were in place.

Although older NLRB decisions supported the Board’s current view that “unilateral changes made pursuant to a past practice developed under an expired management rights clause were unlawful,” the D.C. Circuit held the Board to its more recent precedent upholding such post-CBA changes even where the employer’s prior consistent practice had only occurred under a CBA.

Because the NLRB had not “offered any reason whatsoever for thinking a unilateral action being taken during a hiatus period, although expressly deemed immaterial in [a recent case], should be dispositive in this case,” the court remanded for a new decision in conformity with its recent precedent or for an explanation justifying the Board’s inconsistent treatment.

E.I. Du Pont Nemours & Co. v. NLRB, No. 10-1300 (June 8, 2012) (Ginsburg, J., joined by Edwards, S.J., with Randolph, S.J., concurring in the judgment).

See also:

  • Mintz Levin, NLRB Told To Follow Its Precendent Or Explain Why, JDSupra Employment Matters Blog (June 25, 2012) (“This D.C. Circuit decision, then, is a positive sign that while the NLRB can make interpretative shifts, it must do so in a manner that allows all parties to rely upon predictable legal outcomes in the dynamic field of labor relations.”)

2 responses to “To Vacate or Not to Vacate? How to Handle Unlawful but Potentially Redeemable Agency Action

  1. Pingback: No Deference for SEC’s “Vague and Indecisive” Interpretation of its Own Rule | D.C. Circuit Review

  2. Pingback: Cato Institute to TSA: Stop the Foot-dragging on Notice-and-Comment for Naked Body Scanners | D.C. Circuit Review

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s