The Mask-Mandate Remedy

It is possible that people will judge the merits of different mask mandates differently and decide to praise or criticize today’s decision not to revoke the mandate. We should also consider remedies, which are important. The U.S. District Court of the Middle District of Florida has issued another highly consequential decision. This “could have been considered” caveat matter is here for reasons that will be clear.

Here are some thoughts about the solution:

The opinion first considers different arguments, but focuses on circuit precedent to support vacatur under the Administrative Procedure Act. These precedents reflect a wrong position, I think. However, this is the best ground for a district court to find the remedies decision.

Second, we are at a stage where national injunctions are being issued by district courts, sometimes with some hand-wringing. We now have the standard concern: “The Court acknowledges the criticisms about nationwide injunctive Relief and admits to some of it” (p. 55).

Third, the current stage is also one where the courts are wrestling with whether to draw a sharp distinction between APA and non-APA remedies, and specifically with how to handle  “vacatur” and “injunction.” The opinion is clear and separates them, except for footnote 4 at p. 56. This opinion also states it is vacatur and not an injunction. The court still addresses the arguments and references authorities related to national Injunctions. So, they are somewhat interconnected.

It will matter how this issue is resolved. Vacuatur is not a traditional equitable remedy. Therefore, if it’s wedged between it and injunction, then it’s unclear that all the equitable considerations that are applicable to it have any bearing on the former. That’s another topic. . . .)

It is understandable that the court will rely upon the precedent of the circuit court to vacatur a rule applicable to everyone, not only the parties. However, the court does not address whether the remedy is correct. John Harrison’s persuasive arguments that there is no “set apart” remedy in the APA, the language “set aside”, which isn’t even found in the APA section of remedies, should be considered. The leading analysis on the other side is Mila Sohoni’s recent APA article.

In his concurring opinion last week, Judge Sutton addressed an important issue regarding this question Arizona v. Biden:

It is true that the Administrative Procedure Act states that an administrative court can “hold unlawful” and exempt agency actions from being considered illegal. 5 U.S.C. § 706(2). This raises the question, but it doesn’t answer it. This unremarkable language raises the question of whether Congress wanted to overturn the practice that each case is judged individually. It is assumed that statutes are consistent with long-standing remedial principles. Nken v. Holder, 556 U.S. 418, 433 (2009); Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982). It is not clear, however, that Congress meant to make this sweeping change. See Bray supra at 438, n.121, and John Harrison in Section 706 of the Administrative Procedure Act Doesn’t Call for Universal Interventions or Other Universal Remedies. 37 Yale J. Reg. Bull. 37, 41–47 (2020); with Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1191–92 (2020). The “setting aside language” does not appear to indicate whether we should nullify or enforce illegal administrative actions in the case with named litigants. For that reason, I would be inclined to stand by the long-understood view of equity—that courts issue judgments that bind the parties in each case over whom they have personal jurisdiction.

A district court might understandably stop at controlling the precedents of circuit courts, at least if there were no significant cases. Circuit court judges, as well as the justices, should consider whether such an approach is supported by the text, structure and historical context of APA.

Fourth, while I’ve referred to court’s reliance upon circuit precedent, there is an eyebrow-raising reference to a Supreme Court case from p. 54:Barr v. Am. Ass’n. Pol. Consultants, Inc.140 S. Ct. 2335 (2020), 2351 n.8 (2050) (explaining what happens when “a provision” is violated). [of law]Declared invalid[,]The invalid provision “cannot be lawfully enforced versus others”–not only ‘against plaintiff

This citation has many problems. The Court does not have an opinion on this citation. This part only has the view of three justices. This footnote does not address the APA, but statutes and severability. It is therefore irrelevant to an APA-specific argument. Also, see footnote from BarrIt is important to focus only on the consequences of the Court, the Supreme Court, deciding that a provision in a statute violates the Constitution. This is missing the crucial premise that district court are similar to the Supreme Court in this regard. The most important point is that, even though the footnote differentiates between Justice Thomas’s view and Justice Thomas’s, it insists on treating them both as different paths. . . The same direction. Footnote: The major canonical cases to support the assertion that a judicial ruling does not apply. NotIt is possible to remove an inconstitutional statute. Although the footnote may be carefully interpreted, it is arguably just as valid to deny the remedy of vacatur by district court.

Fifth, the court includes as an independent reason for vatur of the rule “is necessary in order to grant complete relief”. The court of equity is bound by equity to provide complete relief for plaintiffs. The court of equity can Sometimes it goes to extreme lengths in order to right the wrong against a plaintiff. There are many reasons equity may not grant relief, including conduct by the plaintiff, difficulty with enforcement, balance of hardships and all of the principles in the equitable maxims. This is how I explained it at p. 468. Multiple ChancellorsFootnote 297 contains supporting citations

The final principle of complete relief makes equity’s remedial options more difficult, because it treats an equitable remedy exactly as the underlying right. The scope of an equitable remedy does not automatically exist. However, there are many situations where equitable remedies extend beyond or fall short of the plaintiff’s strict rights. 297

Arguments by the court on this issue are based entirely on the idea that it is too difficult for the government distinguish plaintiffs from others travelers. It may well be true. The government may prefer to remove the mask mandate completely, rather than enforcing the order against anyone but the plaintiffs. However, that is not the decision of the district court. The concurrence of Judge Sutton in Arizona v. Biden addressed this point: “Relatedly, the district court worried that the Guidance could not ‘be applied on a state-by-state basis.’ R.44 at page 78. However, this is at first the National Government’s problem and not ours. It also acknowledged that severed enforcement of policy remains an option.

It’s also not clear, according to the court’s opinion, how many plaintiffs are there. Footnote 5, simply states that the court took judicial note that the organization plaintiff has members “all across the country.” Given the importance of this case, it is important to know the facts that will determine the validity of a national remedy. However, the decision regarding administrative feasibility of non-parties belongs, at minimum in the initial instance, to government. It is the court’s responsibility to provide a remedy for the plaintiffs.

On the remedy front, there is much more to be said about the case. This includes the absence of an appeal stay and questioning the function of the declaratory judgement. However, this is too much. Let me close by saying that this is an extremely broken system. There is strong disagreement about which policy should be followed in this current pandemic. The decisions will involve not just scientific judgements but also politics about cost and tradeoffs. These should all be subject to Bayesian updates. It is difficult to determine who the Constitutionally Right Actor should be for these types of policies (e.g., the federal government or the individual states). It is possible to disagree on both the policy and institutional issues. In deciding cases, federal courts may have to consider whether an agency outran its legislative authority to do so. The court in this case ruled. It is an extremely broken system, however, when all federal agencies (House, Senate and President), act or fail to take action, a district court judge can immediately sweep them aside, choosing a solution that benefits everyone.

It is not the way history has worked. This is something that none of the Founders could imagine. Brutus was an Antifederalist critic who was adamant about federal judicial power. Can you imagine the thoughts he had if he believed this to be possible? This is not how it was when the APA came into effect. This doesn’t need to be the case.

It will remain this way, if conservatives oppose “nationwide” remedies against Republican presidents and liberals object only to them against Democratic presidents. Continued stalemate can be achieved only by selective outrage or what-about-ism against the inconsistencies of the opposing side. These remedies can be criticized on principle.