332 F. Supp. 3d 181
D.C. Cir.2018Background
- In Nov. 2016 the Department of Education promulgated Borrower Defense Regulations to take effect July 1, 2017; litigation (CAPPS v. DeVos) followed challenging aspects of those rules.
- Before the Court decided CAPPS’s preliminary-injunction motion, the Department issued a §705 APA stay (June 2017) postponing many provisions and later issued an interim final rule (Oct. 24, 2017) delaying effectiveness to July 1, 2018 and an NPRM to delay to July 1, 2019.
- On Feb. 14, 2018 the Department issued a Final Delay Rule pushing the effective date to July 1, 2019.
- The district court previously held the Final Delay Rule violated the HEA’s procedural requirements (improperly invoking good-cause to avoid negotiated rulemaking) and held the §705 stay arbitrary and capricious.
- The current opinion addresses remedy: plaintiffs seek vacatur of the stay and immediate effect of the Borrower Defense Regulations; the Department urges remand without vacatur or a delayed implementation period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Feb. 14, 2018 Final Delay Rule should be vacated | The Final Delay Rule was procedurally unlawful under the HEA and should be vacated immediately | Dept. did not oppose vacatur on this rule at hearing | Vacated: Court immediately VACATES the Final Delay Rule |
| Whether the §705 stay should be vacated or remanded without vacatur | Vacate the stay so Borrower Defense Regulations take effect immediately (alternative: limited TRO re arbitration prohibition) | Remand without vacatur, or at least delay implementation (Dept. requested 60 days to implement) | Court VACATES the §705 stay but STAYS the vacatur for 30 days (until Oct. 12, 2018 at 5:00 p.m.) to allow Dept. to attempt to cure defects while minimizing disruption |
Key Cases Cited
- NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018) (vacatur is ordinary remedy; courts may stay vacatur to let agency cure defects)
- Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146 (D.C. Cir. 1993) (remand-without-vacatur appropriate where agency can likely substantiate decision and vacatur would be disruptive)
- Radio-Television News Directors Ass'n v. FCC, 184 F.3d 872 (D.C. Cir. 1999) (discussing standards for remand without vacatur)
- WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002) (nontrivial likelihood standard for agency to justify action on remand)
- Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006) (district court has remedial discretion including staying vacatur)
- Buckley v. Valeo, 424 U.S. 1 (U.S. 1976) (equitable stays of judgments to allow corrective action by another branch or actor)