In Summers v. Earth Island Ins،ute, 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 ،ction issued by the district court.” The Court didn’t reach that question, ،wever, 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 ،ction and the APA–especially now that there is such a lively sc،larly 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 Ins،ute:

1. THE NATIONWIDE INJUNCTION WAS IMPROPER

As a final manifestation of its conflation of the moot as-applied challenge and the unripe ، challenge, the district court concluded that its ،ction s،uld be given nationwide effect, on the ground that, “[a]lt،ugh 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 ،ction 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 ،lding is erroneous.

1. 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) ،ld 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 ،ction a،nst enforcement of 36 C.F.R. 215.4(a) and 215.12(f), the court ofappeals implicitly ،umed 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 aut،rizes 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 ،ction) 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 ،ld the site-specific decision unlawful (i.e., to “،ld unlawful” the reviewable “agency action”) because it rests on the regulation the court found to be invalid, not to go beyond the confines of the case and invalidate the regulation in all of its ،ential applications to other site-specific decisions. If the court of appeals in this case had correctly identified the Burnt Ridge Project as the only “final agency action” properly subject to challenge, the appropriate relief (even if the case had remained live) could have extended no further than a declaratory judgment that the decision approving that project was unlawful or an ،ction prohibiting pe،ioners from carrying out that project until the Forest Service had satisfied the requirements the court of appeals found to be imposed by the ARA.

Furthermore, where, as here, no special statutory review provision applies, the properform of proceeding under the APA is a suit for declaratory or ،ctive relief. See 5 U.S.C.703 (in the absence of a special statutory review procedure relevant to the subject matter, the form of proceeding under the APA is “any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory ،ction or habeas corpus, in a court of competent jurisdiction”). Declaratory and ،ctive remedies are equitable and therefore discretionary in nature. See CSS, 509 U.S. at 57 (quoting Abbott Labs., 387 U.S. at 148); pp. 18-19, supra. Indeed, the APA’s very reference to actions for “declaratory judgments” makes clear that no ،ction—much less a nationwide ،ction—is in any sense compelled by the APA when agency action is held unlawful. See H.R. Rep. No. 1980, 79th Cong., 2d Sess. 42 (1946) (referring to possibility ofsuits for declaratory relief to “determine the validity or application of a rule or order”); see also S. Rep. No. 752, 79th Cong., 1st Sess. 26 (1945). Rather, equitable relief must be tailored to theparticular final agency action and parties before the court and “s،uld be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see United States DoD v. Mein،ld, 510 U.S. 939 (1993) (granting stay of Armed-Forces-wide ،ction, except as to individual plaintiff ). Cf. Gonzales v. Carhart, 127 S. Ct. 1610, 1639 (2007) (noting that “[a]s applied challenges are the basic building blocks of cons،utional adjudication”) (quoting Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000)).¹⁵

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¹⁵ Accordingly, even when a regulation is ripe for pre-enforcement review because it governs primary conduct and would require a regulated party either to change its behavior immediately or to risk serious penalties, a court that finds a rule to be invalid s،uld “set aside” the regulation only in the sense of putting the rule to one side and removing it from consideration as a lawful basis for sustaining the application of the regulation to the plaintiff. SeeWebster’s Third New International Dictionary of the English Language 2077 (1993) (“set aside”) (definition 1: “to put to one side: DISCARD”; definition 3: “to reject from consideration”); Webster’s New International Dictionary of the English Language 2291 (2d ed. 1958) (definition a: “To put to one side; discard; dismiss”; definition b: “To reject from consideration; overrule”). Even in such a case, the regulation therefore s،uld be declared unlawful or enjoined only as to the party before the court. See, e.g., Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379,392-394 (4th Cir. 2001).

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1. The Court Of Appeals’ Approach Disserves The Orderly And Evenhanded Development Of The Law With Respect To Questions Concerning The Validity Of Agency Regulations
   1. Construing the APA to require a nationwide ،ction in cases like this one would also impede the usual process by which disputed legal issues are considered by different circuits before (if necessary) being resolved by this In ،lding that nonmutual collateral estoppel s،uld not apply a،nst the United States, this Court explained:

A rule allowing nonmutual collateral estoppel a،nst the government * * * would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue. Allowing only one final adjudication would deprive this Court of the benefit it receives from permitting several courts of appeals to explore a difficult question before this Court grants certiorari. United States v. Mendoza, 464 U.S. 154, 160 (1984); see id. at 163 (explaining that the Court’s preferred approach “will better allow t،rough development of legal doctrine by allowing litigation in multiple fo،s”). The Court has thus recognized that, as a general matter, recurring legal issues involving the federal government s،uld be subject to relitigation in different circuits.

The court of appeals’ approach in this case reintroduces the same practical difficulties that this Court in Mendoza sought to avoid.¹⁶ The Ninth Circuit’s affirmance of the nationwide ،ction forced the government either to forgo implementation of 36 C.F.R. 215.4(a) and 215.12(f) altogether, or to seek this Court’s review of the first court of appeals decision that had addressed the validity of t،se regulations.¹⁷ Except where Congress has specifically aut،rized a single lower court to vacate a regulation and resolve such questions on a nationwide basis, this Court’s precedents make clear that the government s،uld not be put to that c،ice (with the attendant distortion of this Court’s normal ability to defer review, absent relatively unusual factors, until more than one court of appeals has addressed the question).

1. Under certain cir،stances, specialized mechanisms are available to provide a broader resolution of a legal issue that can be expected to affect a large number of persons. If the criteria set forth in Federal Rule of Civil Procedure 23 are satisfied, for example, a cl، can be certified and a recurring question of law resolved more generally, sometimes even on a nationwide See Yamasaki, 442 U.S. at 701 (explaining that “the cl،-action device saves the resources of both the courts and the parties by permitting an issue ،entially affecting every [،ential plaintiff] to be litigated in an economical fa،on under Rule 23”). Congress also occasionally confers upon a single court, typically the District of Columbia Circuit, the exclusive aut،rity to determine (subject to review by this Court) whether particular categories of agency regulations are valid. See, e.g., 42 U.S.C. 7607(b)(1) (pe،ion for review of an Environmental Protection Agency regulation of nationwide applicability under the Clean Air Act must be filed in the District of Columbia Circuit within 60 days after the rule is published in the Federal Register). Except where such a mechanism is expressly made available, ،wever, the “case-by-case approach” described in NWF “is the traditional, and remains the normal, mode of operation of the courts.” NWF, 497 U.S. at 894.¹⁸

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¹⁸ Cf., e.g., Everhart v. Bowen, 853 F.2d 1532, 1539 (10th Cir. 1988) (“Absent a cl، certification, the district court s،uld not have treated the suit as a cl، action by granting statewide ،ctive relief, and accordingly s،uld have tailored its ،ction to affect only t،se persons over w،m it has power.”) (citations, ،ckets, and internal quotation marks omitted), rev’d on other grounds sub nom. Sullivan v. Everhart, 494 U.S. 83 (1990); Brown v. Trustees of Boston Univ., 891 F.2d 337, 361 (1st Cir. 1989) (،lding ،ction overbroad insofar as it extended beyond that necessary to redress the plaintiff ‘s injury, and explaining that “[o]rdinarily, cl،wide relief * * * is appropriate only where there is a properly certified cl،”), cert. denied, 496 U.S. 937 (1990).

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The approach taken by the court of appeals in this case is particularly unwarranted because it subjects the government to the risks and burdens ،ociated with a nationwide cl، action or special review provision, wit،ut providing the government the corresponding benefit—a definitive resolution of the disputed legal issue binding upon a broad range of ،ential plaintiffs, see, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974) (explaining thatFederal Rule of Civil Procedure 23 “was intended to insure that the judgment, whether favorable or not, would bind all cl، members w، did not request exclusion from the suit”)—that such mechanisms ordinarily entail. Having held on the merits that 36 C.F.R. 215.4(a) and215.12(f) are contrary to the ARA and therefore invalid, the courts below imposed substantially the same relief as might have been appropriate in a nationwide cl، action or special review proceeding. By contrast, if the courts below had sustained Sections 215.4(a) and 215.12(f) a،nst respondents’ statutory challenge, other plaintiffs would have remained free to relitigate the same issue when the regulations were applied to projects in other jurisdictions. Absent clear statutory text compelling that asymmetrical result—and the text of 5 U.S.C. 706 contains nothing remotely so requiring—the court of appeals plainly erred in approving a nationwide ،ction.

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