“Remand without vacatur” is an administrative law remedy that allows courts reviewing agency actions with minor legal defects to leave the action in place while the agency fixes the defect. Courts use a two-prong test from the 1993 D.C. Circuit case Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission to determine whether or not to vacate the action pending remand. Allied-Signal’s “deficiency” prong directs the court to consider how bad the defect is. The “disruption” prong directs the court to consider how much havoc will be wreaked by the vacation of the action while the agency is fixing the defect. But as the test has been applied in diverse contexts over the years, ambiguity in its application—particularly regarding the disruption prong—has created problems for courts and litigants. This Note proposes the addition of a third prong, the “directive” prong: courts should consider the purpose of the statutory scheme at issue. This will bring remand without vacatur more in line with an analogous Supreme Court doctrine and also address the problematic ambiguity courts have encountered when applying the Allied-Signal test.
T. Alex B. Folkerth,
The "Directive" Prong: Adding to the Allied-Signal Framework for Remand Without Vacatur,
Mich. J. Envtl. & Admin. L.
Available at: https://repository.law.umich.edu/mjeal/vol9/iss2/6