The ordinary remand rule and the judicial toolbox for agency dialogue

George Washington Law Review

Volumn 82, Issue 5, 2014, Pages 1553-1621

  Walker, Christopher J ^a  

^a OHIO STATE UNIVERSITY   (United States)

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EID: 84919734665     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (277)

1. See generally Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 COLUM. L. REV. 939, 940-42 (2011).
2. See, e.g., Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005) (explaining that "Chevron teaches that a court's opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative," and reiterating that "the agency remains the authoritative interpreter (within the limits of reason) of such statutes")
3. See also Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 516 (describing Chevron deference as "an across-the-board presumption that, in the case of ambiguity, agency discretion is meant").
4. See, e.g., William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 CORNELL L. REV. 831, 881 (2001) (explaining that "the Executive has an independent and constitutionally mandated role in the discernment and articulation of constitutional meaning in connection with its execution of the laws")
5. Christopher J. Walker, Avoiding Normative Canons in the Review of Administrative Interpretations of Law: A Brand X Doctrine of Constitutional Avoidance, 64 ADMIN. L. REV. 139, 173-82 (2012) (exploring these dual separation of powers concerns in the context of Chevron deference and modern constitutional avoidance). Some scholars have taken this argument a step further
6. See Jack Goldsmith & John F. Manning, The President's Completion Power, 115 YALE L.J. 2280, 2282 (2006) (arguing that the President has constitutional authority to fill in the holes of any statutory scheme, subject to congressional override).
7. See, e.g., Negusie v. Holder, 555 U.S. 511, 517 (2009) ("When the BIA has not spoken on 'a matter that statutes place primarily in agency hands,' our ordinary rule is to remand to 'giv[e] the BIA the opportunity to address the matter in the first instance in light of its own expertise.'"
8. (quoting INS v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam)))
9. See generally 3 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 18.1 (5th ed. 2009).
10. SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 196 (1947)
11. See also SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 95 (1943) (remanding the matter to the agency because the "administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained").
12. Indeed, since Judge Friendly tried to make sense of the case law concerning the remand rule in 1969, Henry J. Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 DUKE L.J. 199, 222-25, examination of the ordinary remand rule has been explored in just a few articles limited to examining the standard applications and exceptions to remand in practice
13. See, e.g., Patrick J. Glen, "To Remand, or Not To Remand": Ventura's Ordinary Remand Rule and the Evolving Jurisprudence of Futility, 10 RICH. J. GLOBAL L. & BUS. 1 (2010)
14. John W. Guendelsberger, Judicial Deference to Agency Decisions in Removal Proceedings in Light of INS v. Ventura, 18 GEO. IMMIGR. L.J. 605 (2004)
15. None of these articles explores the separation of powers concerns at play or conducts a systematic review of court of appeals decisions to assess whether and when courts refuse to remand and the reasons given. The most comprehensive study on the effect of the remand rule was recently conducted by Professor Emily Hammond, examining serial litigation in the administrative rulemaking context. See generally Emily Hammond Meazell, Deference and Dialogue in Administrative Law, 111 COLUM. L. REV. 1722 (2011). This Article builds on Professor Hammond's findings in the agency rulemaking context by analyzing the use of the remand rule in the agency adjudication context.
16. Professor Hammond makes a similar observation in her insightful response to this Article. Emily Hammond, Court-Agency Dialogue: Article III's Dual Nature and the Boundaries of Reviewability, 82 GEO. WASH. L. REV. ARGUENDO 171, 177 (2014) (observing that the study's findings "extend[] beyond the immediate context⋯ to other types of adjudications as well as rulemakings").
17. This calculation is a conservative estimate based on citations to the Supreme Court's 2002 opinion concerning the ordinary remand rule: INS v. Ventura, 537 U.S. 12 (2002) (per curiam). Westlaw KeyCite reports that Ventura has been cited in more than 1750 published and unpublished decisions by courts of appeals.
18. Negusie, 555 U.S. 511; Gonzales v. Thomas, 547 U.S. 183 (2006); Ventura, 537 U.S. 12.
19. INS v. Ventura, 537 U.S. 12 (2002).
20. See, e.g., Gillian E. Metzger, Embracing Administrative Common Law, 80 GEO. WASH. L. REV. 1293, 1295 (2012) (defining and defending "administrative common law" as "administrative law doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies").
21. See, e.g., Id. at 1780 ("[A]sking agencies to be equal partners in a dialogue enhances participation, deliberation, and legitimacy because⋯ interested parties, Congress, and the courts can more easily understand and respond to their reasoning."); Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 COLUM. L. REV. 479, 492 (2010) ("[R]equiring that agencies explain and justify their actions also arguably reinforces political controls by helping to ensure that Congress and the President are aware of what agencies are doing.").
22. Vt. Yankee Nuclear Power Corp v Natural Res. Def. Council, Inc., 435 U.S. 519, 524 (1978) ("Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.").
23. Merrick B. Garland, Deregulation and Judicial Review, 98 HARV. L. REV. 505, 525-62 (1985) (detailing the hard look doctrine's development)
24. Thomas J. Miles & Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U. CHI. L. REV. 761, 761 (2008) ("In the 1960s and 1970s, the federal courts of appeals, above all the United States Court of Appeals for the District of Columbia Circuit, developed the 'hard look doctrine.'").
25. Chevron U.S.A. Inc v Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
26. Chenery I, 318 U.S. at 88 (quoting Helvering v. Gowran, 302 U.S. 238, 245 (1937))
27. See also Jerry L. Mashaw, Small Things Like Reasons Are Put in a Jar: Reason and Legitimacy in the Administrative State, 70 FORDHAM L. REV. 17, 19-26 (2001) (exploring the different role of reasons in judicial review of lower court decisions, administrative actions, and congressional statutes).
28. Kevin M. Stack, The Constitutional Foundations of Chenery, 116 YALE L.J. 952, 958-59 (2007)
29. Others have also advanced separation of powers justifications for this Chenery principle. See, e.g., Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 DUKE L.J. 387, 427-35
30. Peter L. Strauss, Legislation That Isn't - Attending to Rulemaking's "Democracy Deficit," 98 CALIF. L. REV. 1351, 1364-65 (2010).
31. Fed. Power Comm'n v. Idaho Power Co., 344 U.S. 17, 20 (1952) (reversing the D.C. Circuit order for the agency to issue a license the agency had previously denied).
32. See, e.g., Heckler v. Chaney, 470 U.S. 821, 832 (1985) ("[W]e recognize that an agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict - a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to 'take Care that the Laws be faithfully executed.'" (quoting U.S. CONST. art. II, § 3)).
33. Bowsher v. Synar, 478 U.S. 714, 733 (1986).
34. As Hiroshi Motomura explains, the plenary power doctrine "declares that Congress and the executive branch have broad and often exclusive authority over immigration decisions. Accordingly, courts should only rarely, if ever, and in limited fashion, entertain constitutional challenges to decisions about which aliens should be admitted or expelled." Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 547 (1990).
35. This Executive-focused Article II separation of powers concern is of course most at issue with respect to executive agencies, See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2373 (2001), but one could imagine similar concerns when the responsibility to execute the law is bestowed on an independent agency.
36. See, e.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969) (affirming agency action and refusing to reverse where the agency's "command is not seriously contestable," "[t]here is not the slightest uncertainty as to the outcome of a proceeding before the [agency]," and thus "[i]t would be meaningless to remand"); Penn-Cent. Merger & N & W Inclusion Cases, 389 U.S. 486, 526 & n. 14 (1968) (affirming agency action and refusing to apply Chenery remand rule where the agency's decision was correct and "the District Court appears to have agreed in substance with all the major findings of the Commission" yet "added several points that it believed would also support the Commission's conclusions")
37. Mass. Trs. of E. Gas & Fuel Assocs v United States, 377 U.S. 235, 247-48 (1964) (affirming agency action and refusing to extend Chenery to require remand "when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached").
38. Friendly, supra note 8, at 224. The one exception to this rule that Judge Friendly noted is City of Yonkers v. United States
39. in which the Court set aside an agency action without remanding. City of Yonkers v. United States, 320 U.S. 685, 692 (1944). There, however, the Court did not remand because it found that the agency had no jurisdiction to take any action. See Id. at 691-92. Where an agency has no authority to act, the separation of powers concerns Chenery seeks to address are not implicated, and thus no remand would be necessary. The same is true where a court finds a statute unambiguous at "Chevron step zero." See infra note 80 and accompanying text.
40. Fla. Power & Light Co v Lorion, 470 U.S. 729, 744 (1985).
41. Fed. Power Comm'n v. Idaho Power Co., 344 U.S. 17, 20 (1952).
42. Chevron U.S.A. Inc v Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
43. See Jud Mathews, Deference Lotteries, 91 TEX. L. REV. 1349, 1356-62 (2013)
44. Reuel E. Schiller, The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 MICH. L. REV. 399, 407-12, 430-38 (2007).
45. NLRB v. Hearst Publ'ns, Inc., 322 U.S. 111 (1944)
46. overruled in part by Nationwide Mut. Ins. Co v Darden, 503 U.S. 318 (1992).
47. Skidmore v. Swift & Co., 323 U.S. 134 (1944).
48. Peter Strauss has helpfully reframed these two types of deference, referring to Hearst (now Chevron) deference as "Chevron space" and Skidmore deference as "Skidmore weight." Peter L. Strauss, "Deference" Is Too Confusing - Let's Call Them "Chevron Space" and "Skid-more Weight," 112 COLUM. L. REV. 1143, 1144-45 (2012)
49. See also Christopher J. Walker, Response, How to Win the Deference Lottery, 91 TEX. L. REV. SEE ALSO 73, 78-79 (2013) (exploring the space/weight reformulation in more detail).
50. The Court, of course, continued to grapple with these deference questions during those four decades, and those cases are chronicled in William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1086 n. 10 (2008).
51. Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 834-35 (2001).
52. Chevron U.S.A. Inc v Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
53. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005).
54. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996); See also Walker, supra note 4, at 176-77 (further exploring Chevron's separation of powers foundation).
55. Although outside the scope of this Article, it is important to further contextualize the interaction between Chevron and Chenery. As explained in Part I.A, Chenery advanced two related principles motivated by separation of powers: the ordinary remand rule and a reason-giving requirement. See supra Part I.A. Similarly, Chevron deference was preceded the prior Term by the Court's adoption of "hard look" review. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983)
56. Just like the Chenery Court, which instituted a reason-giving requirement, the State Farm Court adopted a reasoned decisionmaking requirement for arbitrary and capricious review under the APA: "the agency must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Id. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962))
57. See also Stephanie R. Hoffer & Christopher J. Walker, The Death of Tax Court Exceptionalism, 99 MINN. L. REV. (forthcoming 2014), available at http://ssrn.com/abstract=2393412 (exploring hard look review under the APA in more detail). In other words, both Chenery and Chevron/State Farm attempt to strike the separation of powers balance by allowing agencies to be the primary enforcers and interpreters of the statutes they administer, but only to the extent that the agencies engage in reasoned decisionmaking prior to judicial review.
58. See, e.g., Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 191 (2006).
59. The Court's decision in United States v. Mead Corp.
60. confirmed that Skidmore deference applies when Chevron does not. United States v. Mead Corp., 533 U.S. 218, 234-35 (2001)
61. Mead, however, also further muddied the waters about when Chevron or Skidmore applies. See Id. at 239-61 (Scalia, J., dissenting) (explaining the confusion Mead causes for courts in deciding whether Chevron deference applies); See also Mathews, supra note 61, at 1353 (describing a court's decision whether to apply Chevron or Skidmore as a "deference lottery"); Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 480 (2002) (describing Mead as "provid[ing] little guidance to lower courts, agencies, and regulated parties about how to discern congressional intent in any given set of circumstances")
62. Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 ADMIN. L. REV. 807, 813 (2002) (explaining that Mead provides "an undefined standard that invites consideration of a number of variables of indefinite weight")
63. Adrian Vermeule, Introduction: Mead in the Trenches, 71 GEO. WASH. L. REV. 347, 361 (2003) (arguing that Mead's opaque standard "inadvertently sent the lower courts stumbling into a no-man's land"). Whether Chevron or Skidmore applies in a particular case after Mead lies outside the ambition of this Article, but the strategic implications of this uncertainty on agencies are explored in Walker, supra note 70.
64. But see Collin D. Schueler, A Framework for Judicial Review and Remand in Immigration Law, 92 DENV. U. L. REV. (forthcoming 2015), available at http://ssrn.com/abstract=2485280 (arguing that courts should remand statutory questions entitled to either Chevron or Skidmore deference).
65. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005).
66. Brand X Internet Servs v FCC, 345 F. 3d 1120, 1127-32 (9th Cir. 2003)
67. rev'd sub nom. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005).
68. Id. at 982 (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996)). Justice Scalia dissented, predicting that the "wonderful new world that the Court creates [is] one full of promise for administrative-law professors in need of tenure articles and, of course, for litigators." Id. at 1019 (Scalia, J., dissenting). He accused the majority of creating a "breathtaking novelty: judicial decisions subject to reversal by Executive officers." Id. at 1016. This new rule, he argued, is unconstitutional as it forces courts to issue advisory opinions. Id. at 1017-19 & nn. 12-13. The majority dismissed this accusation, noting that the judicial "precedent has not been 'reversed' by the agency, any more than a federal court's interpretation of a State's law can be said to have been 'reversed' by a state court that adopts a conflicting (yet authoritative) interpretation of state law." Id. at 983-84.
69. Garfias-Rodriguez v. Holder, 702 F. 3d 504, 516 n. 8 (9th Cir. 2012) (en banc).
70. Kathryn A. Watts, Adapting to Administrative Law's Erie Doctrine, 101 NW. U. L. REV. 997, 1025-47 (2007).
71. Erie R.R. Co v Tompkins, 304 U.S. 64, 78 (1938) (holding that federal courts lack authority to create general federal common law when considering state-law claims under diversity jurisdiction).
72. Watts, supra note 96, at 1001-02; See, e.g., Lehman Bros v Schein, 416 U.S. 386, 391 (1974) ("[Certification] does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism.")
73. See generally Rebecca A. Cochran, Federal Court Certification of Questions of State Law to State Courts: A Theoretical and Empirical Study, 29 J. LEGIS. 157 (2003).
74. As discussed above, remand is not necessary if the court concludes that Congress did not delegate any Chevron discretion to the agency (Chevron step zero) or if the statutory provision is unambiguous and thus the agency has no discretion to exercise (Chevron step one). Moreover, the Court has cautioned against reading too much into pre-Chevron cases when applying the Brand X principle. See United States v. Home Concrete & Supply, LLC, 132 S. Ct. 1836, 1843 (2012). That a court said there was ambiguity - especially before Chevron - does not in fact mean there is ambiguity for Chevron purposes. See Id. at 1842-44 (reaffirming Brand X principle but rejecting the agency's argument that a 1958 Supreme Court opinion stating that a statute is ambiguous creates space for subsequent agency interpretation when the statute is in fact unambiguous).
75. Negusie v. Holder, 555 U.S. 511, 523-24 (2009) (calling it "the Ventura ordinary remand rule")
76. accord INS v. Ventura, 537 U.S. 12, 17 (2002) (per curiam) (describing it as "the law's ordinary remand requirement")
77. See also Gonzales v. Thomas, 547 U.S. 183, 185 (2006) (per curiam) (noting that the rule is "what this Court described in Ventura as the ordinary remand rule" (internal quotation marks omitted)).
78. INS v. Ventura, 537 U.S. 12 (2002).
79. See Ventura v. INS, 264 F. 3d 1150 (9th Cir. 2001), summarily rev'd, 537 U.S. 12 (2002).
80. Spears v. United States, 555 U.S. 261, 268 (2009) (Roberts, C.J., dissenting)
81. See generally EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE § 5.12(c)(7)(d) (9th ed. 2007) ("If the Supreme Court considers the decision below to be clearly wrong but not worthy of oral argument, it may summarily dispose of the case as suggested.")
82. David C. Frederick, Christopher J. Walker & David M. Burke, The Insider's Guide to the Supreme Court of the United States, in APPELLATE PRACTICE COMPENDIUM 8 (Dana Livingston ed., 2012) (discussing the Court's summary reversal practice under Supreme Court Rule 16.1).
83. Id. (quoting Fla. Power & Light Co v Lorion, 470 U.S. 729, 744 (1985)).
84. Id. at 17. In light of Ventura, the Court granted, vacated, and remanded two other Ninth Circuit decisions that similarly failed to follow the ordinary remand rule. See INS v. Silva-Jacinto, 537 U.S. 1100 (2003) (mem.)
85. INS v. Yi Quan Chen, 537 U.S. 1016 (2002) (mem.); See also Glen, supra note 8, at 15-16 (discussing these cases in more detail).
86. Gonzales v. Thomas, 547 U.S. 183, 185 (2006).
87. Thomas v. Gonzales, 409 F. 3d 1177, 1189 (9th Cir. 2005), rev'd, 547 U.S. 183 (2006) (per curiam).
88. INS v. Ventura, 537 U.S. 12, 17 (2002) (per curiam)
89. In light of Thomas, the Court granted, vacated, and remanded two other court of appeals decisions that similarly failed to follow the ordinary remand rule. See Keisler v. Hong Yin Gao, 552 U.S. 801 (2007) (mem.)
90. Gonzales v. Tchoukhrova, 549 U.S. 801 (2006) (mem.)
91. See also Glen, supra note 8, at 17-18 (discussing these cases in more detail). But see Brenna Finn, Comment, Save Me from Harm: The Consequences of the Ordinary Remand Rule's Misapplication to Gao v. Gonzales, 16 AM. U. J. GENDER SOC. POL'Y & L. 527, 528-29 (2008) (arguing "that the Second Circuit properly exercised its power to review the BIA decision without remanding to the BIA for reconsideration of the contested issues, and assert[ing] that the Supreme Court erroneously applied the ordinary remand rule to Ms. Gao's case").
92. Negusie v. Holder, 555 U.S. 511 (2009).
93. Id. at 523 (majority opinion) (quoting Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per curiam)) (internal quotation marks omitted).
94. Id. (quoting Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)).
95. See, e.g., Perry v. Mynu Coals, Inc., 469 F. 3d 360, 369 (4th Cir. 2006) (Williams, J., dissenting) (applying Ventura and Thomas to the decision of an Administrative Law Judge and Benefits Review Board of the United States Department of Labor because, "[j]ust as in Ventura, every consideration that classically supports the law's ordinary remand requirement does so here" (internal quotation marks omitted)).
96. Sutandar v. Holder, 450 F. App'x 592, 597 (9th Cir. 2011) (Ikuta, J., dissenting).
97. See, e.g., Berhane v. Holder, 606 F. 3d 819, 825 (6th Cir. 2010) (applying the remand rule without citing Ventura, Thomas, or Negusie). This appears to be especially true in the Second Circuit, which often just cites its own precedent when remanding
98. See, e.g., Musenge v. Bureau of Citizenship & Immigration Servs., 196 F. App'x 29, 31 (2d Cir. 2006) (remanding while citing Second Circuit precedent applying "the well-worn ordinary remand rule" without citing Ventura, Thomas, or Negusie).
99. See, e.g., Zi Zhi Tang v. Gonzales, 489 F. 3d 987, 988 (9th Cir. 2007) (reversing the BIA's denial of asylum and withholding of removal without remanding and without citing Ventura, Thomas, or Negusie).
100. Leppind v. Mukasey, 530 F. 3d 862, 863 (9th Cir. 2008).
101. INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) ("[T]he proper course, except in rare circumstances, is to remand to the agency⋯." (internal quotation marks omitted)).
102. Compare Ghebremedhin v. Ashcroft, 392 F. 3d 241, 242-44 (7th Cir. 2004) (denying rehearing because only factfinding remanded)
103. with Kholyavskiy v. Mukasey, 540 F. 3d 555, 571-72 (7th Cir. 2008) (remanding for error in law). This intracircuit split materialized before Negusie, which should provide grounds for the Seventh Circuit to resolve the split without having to take the issue en banc. Similarly, the Eleventh Circuit - before Negusie and in a case in which the court denied the petition - recognized that review of an error of law would constitute a "rare circumstance" exception to the ordinary remand rule
104. Calle v. U.S. Attorney Gen., 504 F. 3d 1324, 1330 (11th Cir. 2007).
105. See, e.g., Karimijanaki v. Holder, 579 F. 3d 710, 721 (6th Cir. 2009) ("[A] remand is not required where such a gesture would be futile.")
106. Watson v. Geren, 569 F. 3d 115, 130 (2d Cir. 2009) (applying the futility exception).
107. See, e.g., Yusupov v. Attorney Gen., 650 F. 3d 968, 993 (3d Cir. 2011) (refusing to remand because agency already had one opportunity to address the issue)
108. Fei Mei Cheng v. Attorney Gen., 623 F. 3d 175, 197 (3d Cir. 2010) (deciding the open issue and then remanding for decision consistent with holding)
109. Jean-Louis v. Attorney Gen., 582 F. 3d 462, 469-70 & n. 10 (3d Cir. 2009) (not remanding because futile based on BIA precedent).
110. See, e.g., Zhu v. Gonzales, 493 F. 3d 588, 602 (5th Cir. 2007) ("In sum, the BIA has now had two opportunities to address the legal and factual issues that are again before this court; we need not give it a third bite at this apple.").
111. Jahed v. INS, 356 F. 3d 991, 1001 (9th Cir. 2004) (Kozinski, J., dissenting).
112. See, e.g., Retuta v. Holder, 591 F. 3d 1181, 1189 (9th Cir. 2010).
113. See, e.g., Kyong Ho Shin v. Holder, 607 F. 3d 1213, 1221 (9th Cir. 2010)
114. But see id. at 1224 (Wallace, J., dissenting) ("When we proceed to the interpretation of a statute in the absence of agency guidance, we create the potential for conflict between ourselves and the agency, and between ourselves and other circuits. Inversion of this sequence is not without consequences."); Perez-Enriquez v. Gonzales, 463 F. 3d 1007, 1016 (9th Cir. 2006) (en banc) (Bybee, J., dissenting) ("I am with the majority until that final step. I am not so confident that we can reach that conclusion for BIA, even though we may have invited the error. An agency has a duty of consistent dealing. It also has the duty, in the first instance, to construe the statutes it enforces.").
115. See, e.g., Zheng v. Ashcroft, 397 F. 3d 1139, 1148-49 (9th Cir. 2005)
116. Guo v. Ashcroft, 361 F. 3d 1194, 1204 (9th Cir. 2004)
117. He v. Ashcroft, 328 F. 3d 593, 604 (9th Cir. 2003).
118. Soto-Olarte v. Holder, 555 F. 3d 1089, 1093 (9th Cir. 2009).
119. See Castañeda-Castillo v. Gonzales, 488 F. 3d 17, 24-25 (1st Cir. 2007) (en banc)
120. Li Zu Guan v. INS, 453 F. 3d 129, 136 (2d Cir. 2006)
121. Elzour v. Ashcroft, 378 F. 3d 1143, 1154 (10th Cir. 2004)
122. Dia v. Ashcroft, 353 F. 3d 228, 260 (3d Cir. 2003).
123. Disparity among circuits in the immigration context is well chronicled. See, e.g., Fatma Marouf, Michael Kagan & Rebecca Gill, Justice on the Fly: The Danger of Errant Deportations, 75 OHIO ST. L.J. 337 (2014) (chronicling disparate grant rates in stay-of-removal context)
124. Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 296 (2007) (finding, in the most expansive empirical study on immigration adjudication to date, "amazing disparities in grant rates" of immigration adjudication petitions, such that the process was compared to "refugee roulette")
125. Christopher J. Walker, Response, Does the Legal Standard Matter? Empirical Answers to Justice Kennedy's Questions in Nken v. Holder, 75 OHIO ST. L.J. FURTHERMORE 29 (2014) (responding to Marouf, Kagan & Gill, supra).
126. The Ninth Circuit's decisions make up over 45 percent of the overall sample (154 of 342). Moreover, in 2012, the federal courts of appeals decided 2711 total immigration petitions in published and unpublished opinions. Of those, the Ninth Circuit decided 1097 decisions, followed by the Second Circuit with 686, the Third Circuit with 224, the Eleventh Circuit with 138, the Fifth Circuit with 133, the Fourth Circuit with 131, and the Sixth Circuit with 106. The remaining circuits decided around 50 petitions each. John Guendelsberger, Circuit Court Decisions for December 2012 and Calendar Year 2012 Totals, IMMIGR. L. ADVISOR, Jan. 2013, at 4.
127. See, e.g., Mickeviciute v. INS, 327 F. 3d 1159, 1164-65 (10th Cir. 2003).
128. Id. at 1164. The bulk of the decisions that cite congressional delegation merely quote or paraphrase that justification from the Supreme Court trilogy. See Negusie v. Holder, 555 U.S. 511, 523 (2009) ("This remand rule exists, in part, because ambiguities in statutes within an agency's jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion." (internal quotation marks omitted))
129. INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) ("Nor can an appellate court⋯ intrude upon the domain which Congress has exclusively entrusted to an administrative agency." (omission in original) (internal quotation marks omitted)).
130. Azanor v. Ashcroft, 364 F. 3d 1013, 1021 (9th Cir. 2004).
131. Ramirez-Alejandre v. Ashcroft, 319 F. 3d 365 (9th Cir. 2003).
132. Id. at 397 (Trott, J., dissenting) (citation omitted) (quoting INS v. Rios-Pineda, 471 U.S. 444, 452 (1985)).
133. Id. As Tino Cuéllar has similarly noted in the executive power context, "both law students and executive branch officials themselves no doubt soon recognize that courts view the executive branch as far more than a mere mechanistic implementer of rigidly written legislative statutes." Mariano-Florentino Cuéllar, American Executive Power in Historical Perspective, 36 HARV. J.L. & PUB. POL'Y 53, 59 (2013). Instead, there is "a judicial recognition of the special role of the executive in both domestic and international affairs, even if that role is ultimately one that must be reconciled with the importance assigned to congressionally enacted statutes." Id.
134. See, e.g., Zhu v. Gonzales, 493 F. 3d 588, 602 (5th Cir. 2007) ("[T]he BIA has now had two opportunities to address the legal and factual issues that are again before this court; we need not give it a third bite at this apple.").
135. See, e.g., Ndom v. Ashcroft, 384 F. 3d 743, 756 (9th Cir. 2004) (not remanding because it would be "exceptionally unfair" to allow the government a third chance to present evidence
136. (quoting Baballah v. Ashcroft, 367 F. 3d 1067, 1078 n. 11 (9th Cir. 2004))).
137. See, e.g., Shi Liang Lin v. U.S. Dep't of Justice, 494 F. 3d 296, 313-14 n. 15 (2d Cir. 2007) (en banc) ("We see no reason to remand yet again - ping pong style - when the BIA has had ten years and several opportunities to reconsider a rule that has no basis in statutory text.").
138. See, e.g., Castañeda-Castillo v. Gonzales, 464 F. 3d 112, 128 (1st Cir. 2006) (not remanding when the BIA has already considered the issue), rev'd on reh'g en banc, 488 F. 3d 17, 24-25 (1st Cir. 2007) (en banc) ("The suggestion may be made that remand gives the agency a second bite at the apple. The short answer is that, outside criminal prosecutions governed by double jeopardy principles, second bites are routine in litigation. If the agency decision is flawed by mistaken legal premises, unsustainable subsidiary findings, or doubtful reasoning, remanding to give the agency an opportunity to cure the error is the ordinary course." (citation omitted)).
139. See, e.g., Retuta v. Holder, 591 F. 3d 1181, 1189 n. 4 (9th Cir. 2010) (refusing to remand because "the BIA considered and ruled on the issue")
140. Ali v. Ashcroft, 394 F. 3d 780, 788 (9th Cir. 2005) (not remanding to the BIA because the IJ considered the issue and the BIA affirmed without opinion)
141. Moisa v. Barnhart, 367 F. 3d 882, 887 (9th Cir. 2004) (not remanding because "[t]he [agency], having lost this appeal, should not have another opportunity to show that [the petitioner] is not credible")
142. But see Lopez v. Ashcroft, 366 F. 3d 799, 806-07 (9th Cir. 2004) ("[W]e are aware of no precedent establishing a legal principle limiting the BIA's role on such an issue to 'one bite at the apple'⋯.").
143. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
144. Ramirez-Alejandre v. Ashcroft, 319 F. 3d 365, 368 (9th Cir. 2003) (en banc) (citations omitted)
145. (citing MARK HARRIS, BANG THE DRUM SLOWLY 8, 48, 60-64 (1956)). But see id. at 397 (Trott, J., dissenting) ("When we exceed our authority, separation and allocation of powers in a constitutional sense are clearly implicated.").
146. See, e.g., Hoxha v. Ashcroft, 319 F. 3d 1179, 1185 n. 7 (9th Cir. 2003) (not remanding because "constant remands to the BIA to consider the impact of changed country conditions occurring during the period of litigation of an asylum case would create a 'Zeno's Paradox' where final resolution would never be reached"
147. (citing Avetova-Elisseva v. INS, 213 F. 3d 1192, 1198 n. 9 (9th Cir. 2000)))
148. Mayo v. Ashcroft, 317 F. 3d 867, 874-75 (8th Cir. 2003) (finding "rare circumstances" excusing remand in a case that lasted over twelve years because "[n]o immigrant should have to live over ten years with the uncertainty as to whether she can stay in this country or not").
149. Avetova-Elisseva v. INS, 213 F. 3d 1192, 1198 n. 9 (9th Cir. 2000). The Ninth Circuit reapplied this analogy after Ventura as well. See Hoxha, 319 F. 3d at 1185 n. 7.
150. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 848 (1986)
151. (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 583 (1985)
152. United States v. Will, 449 U.S. 200, 218 (1980)).
153. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995) (first omission in original)
154. (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
155. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332 (1976) ("Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.").
156. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 182 (1980).
157. In her response to this Article, Professor Hammond posits that courts that express Article III concerns yet remand may be doing so in part because of the dual nature of Article III, which also commands judicial self-restraint regarding interference "with executive discretion because 'the subjects are political.'" Hammond, supra note 9, at 176 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803))
158. See also Mark Seidenfeld, Chevron's Foundation, 86 NOTRE DAME L. REV. 273, 292 (2011) (calling this Article III value "judicial self-limitation"). This is an astute observation - one that seems closely related to the Article I and Article II values for Chenery's remand rule (and Chevron deference) discussed in Part I. See supra Part I.A. And it is a friendly amendment to the framework set forth in this Article to the extent that reframing these Article I and Article II values as part of "Article III's softer norms," Hammond, supra note 9, at 177, helps courts apply the remand rule and the dialogue-enhancing tools discussed in this Part.
159. Sinha v. Holder, 564 F. 3d 1015 (9th Cir. 2009).
160. Id. at 1026. The agency granted the petitioner relief on remand, and the Ninth Circuit took notice of the agency's decision despite that the parties had not yet provided notice per the court's directions. See Sinha v. Holder, No. 07-72289 (9th Cir. Dec. 23, 2010)
161. The court subsequently excused the parties for failure to timely comply with the notice requirement. See Sinha v. Holder, No. 07-72289 (9th Cir. Feb. 11, 2011).
162. Castañeda-Castillo v. Holder, 638 F. 3d 354, 363 (1st Cir. 2011) (collecting cases).
163. See, e.g., Id. at 363-64; Viridiana v. Holder, 646 F. 3d 1230, 1239 (9th Cir. 2011)
164. Lavira v. Attorney Gen., 478 F. 3d 158, 172 (3d Cir. 2007)
165. overruled on unrelated grounds by Pierre v. Attorney Gen., 528 F. 3d 180, 189-90 (3d Cir. 2008) (en banc)
166. Ucelo-Gomez v. Gonzales, 464 F. 3d 163, 172 (2d Cir. 2006) (per curiam)
167. Oh v. Gonzales, 406 F. 3d 611, 613-14 (9th Cir. 2005).
168. Asani v. INS, 154 F. 3d 719, 726 (7th Cir. 1998).
169. Castañeda-Castillo v. Holder, 638 F. 3d 354 (1st Cir. 2011).
170. See Ucelo-Gomez v. Gonzales, 464 F. 3d 163, 172 (2d Cir. 2006) (per curiam) (retaining jurisdiction and setting forty-nine day time limit for remand proceedings).
171. Viridiana v. Holder, 646 F. 3d 1230 (9th Cir. 2011).
172. Castañeda-Castillo, 638 F. 3d at 367; accord Jian Hui Shao v. Bd. of Immigration Appeals, 465 F. 3d 497, 502-03 (2d Cir. 2006) ("[W]e respectfully request that the BIA resolve this matter as soon as possible.").
173. Leppind v. Mukasey, 530 F. 3d 862, 863 (9th Cir. 2008)
174. This approach to order a pending appeal to circuit mediation is novel and merits further exploration. As Professor Hammond has noted, "empirical evidence suggests that remanded actions settle 40% to 50% of the time." Hammond, supra note 8, at 1740 (citing Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 1045). Judicially mandated mediation before remand may well avoid the costs of remand and assist the parties in reaching a mutually agreeable outcome. This mediation tool, however, is limited to a mere sentence and footnote in this Article because it does not appear to be a dialogue-enhancing tool, but rather a conflict-resolution tool.
175. Ronald M. Levin, "Vacation" at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 DUKE L.J. 291, 384 (2003) (quoting AM. BAR ASS'N RECOMMENDATION NO. 107B (1997)).
176. Seck v. U.S. Attorney Gen., 663 F. 3d 1356, 1368 (11th Cir. 2011) (performing an analysis of the facts and indicating that the petitioner would likely win on remand)
177. Singh v. Holder, 658 F. 3d 879, 887-88 (9th Cir. 2011) (suggesting facts to be considered on remand)
178. Pannu v. Holder, 639 F. 3d 1225, 1229 (9th Cir. 2011) (providing a principle for the BIA to apply on remand)
179. Bi Xia Qu v. Holder, 618 F. 3d 602, 609 (6th Cir. 2010) (hinting at the outcome of remand)
180. Kueviakoe v. U.S. Attorney Gen., 567 F. 3d 1301, 1306 n. 4 (11th Cir. 2009) (foreclosing a BIA finding based on the same facts without foreclosing the same BIA finding with new facts, hence encouraging more factfinding)
181. Koudriachova v. Gonzales, 490 F. 3d 255, 263 (2d Cir. 2007) (instructing the BIA what the petitioner must show on remand to prevail)
182. Corado v. Ashcroft, 384 F. 3d 945, 948 (8th Cir. 2004) (analyzing and counteranalyzing the record)
183. Mendez-Gutierrez v. Ashcroft, 340 F. 3d 865, 870 (9th Cir. 2003) (hinting that the petitioner would likely lose, but recognizing that the BIA needs to determine it in the first instance)
184. Vera-Villegas v. INS, 330 F. 3d 1222, 1229 n. 5 (9th Cir. 2003) (listing all of the facts that help the petitioner)
185. Melkonian v. Ashcroft, 320 F. 3d 1061, 1071 (9th Cir. 2003) (noting "two factors of particular significance" for the BIA to consider on remand).
186. Hammond, supra note 8, at 1735 n. 54 (citing Pub. Citizen Health Research Grp v Chao, 314 F. 3d 143, 145 (3d Cir. 2002)).
187. ∗, which was two years after Ventura. See INS v. Ventura, 537 U.S. 12 (2002)
188. The Attorney General appointed Mr. Guendelsberger as a BIA member in 2009. Board of Immigration Appeals - Biographical Information, U.S. DEP'T OF JUSTICE, http://www.justice.gov/eoir/fs/biabios.htm#JohnW.Guendelsberger (last updated Feb. 2014).
189. Hammond, supra note 8, at 1786; See also Piranej v. Mukasey, 516 F. 3d 137, 145 (2d Cir. 2008) ("Since the BIA majority expressly declined to speak to these issues⋯, the less said about them by us at this time, the better.").
190. Murillo-Salmeron v. INS, 327 F. 3d 898 (9th Cir. 2003).
191. In her response to this Article, Professor Hammond provides a helpful example of when a hypothetical solution may go too far: when it is offered in the rulemaking context yet the court also remands without vacating the rule. Hammond, supra note 9, at 176-79 (drawing on series of cases culminating in Environmental Defense v. EPA, 489 F. 3d 1320 (D.C. Cir. 2007)). As discussed in Part III, courts should be careful in developing (and combining) dialogue-enhancing tools so as to not exceed their constitutional or statutory authority. See infra Part III.A. Remand without vacatur - a tool not found in the cases reviewed or otherwise analyzed in this Article - is not without controversy, See supra notes 195-96, and may well merit more careful treatment as a dialogue-enhancing tool.
192. See, e.g., Ayele v. Holder, 564 F. 3d 862, 872 (7th Cir. 2009)
193. Ucelo-Gomez v. Gonzales, 464 F. 3d 163, 172 (2d Cir. 2006) (per curiam)
194. Xue Yun Zhang v. Gonzales, 408 F. 3d 1239, 1249 (9th Cir. 2005)
195. El-Sheikh v. Ashcroft, 388 F. 3d 643, 648 (8th Cir. 2004)
196. Mendoza Manimbao v. Ashcroft, 329 F. 3d 655, 663 (9th Cir. 2003).
197. Ucelo-Gomez, 464 F. 3d at 172 (certifying a question along with imposing a time limit and retaining jurisdiction); accord Shi Liang Lin v. U.S. Dep't of Justice, 416 F. 3d 184, 192 (2d Cir. 2005). Indeed, in Ucelo-Gomez, the Second Circuit reminded the agency "that the Court has received no response to its similar request in Shi Liang Lin (mandate issued October 12, 2005)." Ucelo-Gomez, 464 F. 3d at 172 (referring to Shi Liang Lin, 416 F. 3d 184).
198. Ucelo-Gomez v. Gonzales, 464 F. 3d 163 (2d Cir. 2006) (per curiam).
199. El-Sheikh v. Ashcroft, 388 F. 3d 643 (8th Cir. 2004).
200. Sandoval v. Holder, 641 F. 3d 982 (8th Cir. 2011).
201. See, e.g., Owino v. Holder, 575 F. 3d 956, 958-59 (9th Cir. 2009). Cases where the government concedes the court's jurisdiction to review do not seem to enhance court-agency dialogue, but instead implicate whether the court has authority to speak at all.
202. See, e.g., Abulashvili v. Attorney Gen., 663 F. 3d 197, 209 (3d Cir. 2011) ("[W]e strongly recommend that the agency refer the matter to a different IJ⋯.")
203. Tekle v. Mukasey, 533 F. 3d 1044, 1056 (9th Cir. 2008) ("suggesting" a new IJ on remand)
204. Morgan v. Mukasey, 529 F. 3d 1202, 1211 (9th Cir. 2008) ("Given the [passionate and biased] involvement of the immigration judge in the case, it would be appropriate to assign it to a different immigration judge.")
205. Mapouya v. Gonzales, 487 F. 3d 396, 416 (6th Cir. 2007) ("urg[ing]" that a different IJ hear the case on remand)
206. Shu Ling Ni v. Bd. of Immigration Appeals, 439 F. 3d 177, 181 (2d Cir. 2006) (suggesting a new adjudicator on remand)
207. Niam v. Ashcroft, 354 F. 3d 652, 660 (7th Cir. 2004) ("[W]e urge the service to refer the cases to different immigration judges.")
208. Bace v. Ashcroft, 352 F. 3d 1133, 1141-42 (7th Cir. 2003) ("[W]e urge the BIA to assign a different judge to the [petitioner's] case on remand.").
209. Nuru v. Gonzales, 404 F. 3d 1207, 1229-30 (9th Cir. 2005) ("[W]e order that the case be assigned to a different immigration judge who will afford [the petitioner] the impartiality to which all applicants are entitled.").
210. See Bace v. Ashcroft, 352 F. 3d 1133, 1141-42 (7th Cir. 2003) ("Although the choice of a hearing officer is left to the discretion of the BIA, we urge the BIA to assign a different judge to the [petitioner's] case on remand." (citing 7TH CIR. R. 36)).
211. Morgan v. Mukasey, 529 F. 3d 1202 (9th Cir. 2008).
212. Metzger, supra note 13, at 1295; accord Kenneth Culp Davis, Administrative Common Law and the Vermont Yankee Opinion, 1980 UTAH L. REV. 3, 3 ("Most administrative law is judge-made law, and most judge-made administrative law is administrative common law.")
213. Cass R. Sunstein, Factions, Self-Interest, and the APA: Four Lessons Since 1946, 72 VA. L. REV. 271, 271 (1986) ("Much of administrative law is common law.").
214. Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 669 (1970) (describing interplay between the Establishment Clause and Free Exercise Clause of the First Amendment).
215. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("[A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.")
216. See generally 1 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 7.4 (5th ed. 2009) (explaining that the Supreme Court's "hard look" doctrine requires agencies to discuss all major issues it considered in formulating a major rule to demonstrate that its rule meets the APA's reasoned decisionmaking requirement).
217. Administrative common law has its fair share of critics, including most recently Kathryn Kovacs, who argues that much of administrative common law not only offends separation of powers and political accountability but also the need for public deliberation. Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 IND. L.J. (forthcoming 2015), available at http://ssrn.com/abstract=2386025. These criticisms of certain administrative common law, however, seem less applicable here. As discussed in this Part, the tools at issue do not conflict with the text of the APA (or an agency's governing statute) - either by changing the standard or scope of judicial review or by imposing extrastatutory procedures for the agency to follow on remand in violation of Vermont Yankee. See infra notes 256-61 and accompanying text.
218. Vt. Yankee Nuclear Power Corp v Natural Res. Def. Council, Inc., 435 U.S. 519 (1978).
219. Natural Res. Def. Council, Inc., v. U.S. Nuclear Regulatory Comm'n, 547 F. 2d 633, 653 (D.C. Cir. 1976)
220. rev'd sub nom. Vt. Yankee Nuclear Power Corp v Natural Res. Def. Council, Inc., 435 U.S. 519 (1978).
221. Id. at 653-54. Gillian Metzger has explained that the D.C. Circuit's Vermont Yankee "opinion is a masterpiece of obfuscation" on what exactly were the procedures that the agency should have implemented - including, perhaps, cross-examination, discovery, or a more robust record on which to evaluate the agency's reasoned decisionmaking. Gillian E. Metzger, The Story of Vermont Yankee, in ADMINISTRATIVE LAW STORIES 124, 149-50 (Peter L. Strauss ed., 2006)
222. accord Antonin Scalia, Vermont Yankee: The APA, The D.C. Circuit, and the Supreme Court, 1978 SUP. CT. REV. 345, 356 ("The essential meaning of the opinion below was unclear. Indeed, the first step in the Supreme Court's analysis had to be a determination whether the basis of decision was inadequacy of procedures or inadequacy of record support. (The Supreme Court concluded that it was the former.)" (footnote omitted)).
223. Id. at 524. The rule at issue in Vermont Yankee made its way back to the Supreme Court after the D.C. Circuit again found the rule to be arbitrary and capricious, this time for substantive unreasonableness instead of procedural unreasonableness. See Natural Res. Def. Council, Inc v U.S. Nuclear Regulatory Comm'n, 685 F. 2d 459 (D.C. Cir. 1982)
224. The Supreme Court again reversed. See Balt. Gas & Elec. Co v Natural Res. Def. Council, Inc., 462 U.S. 87, 95-97, 105-06 (1983)
225. See also Emily Hammond Meazell, Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science, 109 MICH. L. REV. 733, 760-64 (2011) (discussing Baltimore Gas in more detail).
226. Richard B. Stewart, Vermont Yankee and the Evolution of Administrative Procedure, 91 HARV. L. REV. 1805, 1820 (1978).
227. Davis, supra note 228, at 13-14, 17 (internal quotation marks omitted). Professor Nathaniel Nathanson has even argued that the Court misinterpreted the governing statute in Vermont Yankee, which when properly read in light of legislative history mandated on-the-record proceedings. Nathaniel L. Nathanson, The Vermont Yankee Nuclear Power Opinion: A Masterpiece of Statutory Misinterpretation, 16 SAN DIEGO L. REV. 183 (1979).
228. Clark Byse, Vermont Yankee and the Evolution of Administrative Procedure: A Somewhat Different View, 91 HARV. L. REV. 1823, 1832 (1978).
229. Stephen Breyer, Vermont Yankee and the Courts' Role in the Nuclear Energy Controversy, 91 HARV. L. REV. 1833, 1840 (1978).
230. Paul R. Verkuil, Judicial Review of Informal Rulemaking: Waiting for Vermont Yankee II, 55 TUL. L. REV. 418 (1981)
231. See also Richard J. Pierce, Jr., Waiting for Vermont Yankee II, 57 ADMIN. L. REV. 669 (2005) (arguing that it violates Vermont Yankee to presume a formal adjudication requirement whenever a statute calls for a "hearing").
232. Jack M. Beermann & Gary Lawson, Reprocessing Vermont Yankee, 75 GEO. WASH. L. REV. 856, 860 (2007) ("There are, however, a significant number of important administrative law doctrines that do seem to fly squarely in the face of all but the most unreasonably narrow understandings of the Vermont Yankee decision. These doctrines, ranging from the prohibitions on agency ex parte contacts and prejudgment in rulemakings to the expanded modern conception of the notice of proposed rulemaking, are all ripe for reconsideration.")
233. See also Richard J. Pierce, Jr., Response, Waiting for Vermont Yankee III, IV, and V? A Response to Beermann and Lawson, 75 GEO. WASH. L. REV. 902 (2007).
234. Vt. Yankee Nuclear Power Corp v Natural Res. Def. Council, Inc., 435 U.S. 519, 543 (1978) (noting that courts can impose additional administrative procedures on agencies when "constitutional constraints" so require).
235. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 872 (2009) ("Under our precedents there are objective standards that require recusal when 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'"
236. (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975))).
237. Sinha v. Holder, 564 F. 3d 1015, 1026 (9th Cir. 2009) ("The parties are directed to notify the court immediately after the BIA's decision on remand.").
238. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
239. Nken v. Holder, 556 U.S. 418 (2009).
240. Id. at 429 (second alteration in original) (quoting Ohio Citizens for Responsible Energy, Inc v Nuclear Regulatory Comm'n, 479 U.S. 1312, 1313 (Scalia, Circuit Justice 1986)).
241. See, e.g., Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 12 (2008) (considering the standard for a preliminary injunction in the context of the Navy conducting sonar training where the Navy had not prepared an environmental impact statement as required in certain situations by the National Environmental Policy Act of 1969).
242. See, e.g., Ryan v. Gonzales, 133 S. Ct. 696, 708 (2013) (explaining in the federal habeas context that a court retains its inherent power to utilize equitable remedies unless the statute commands otherwise)
243. accord Enelow v. N.Y. Life Ins. Co., 293 U.S. 379, 382 (1935) (stating that a court may stay a case "pending before it by virtue of its inherent power to control the progress of the cause so as to maintain the orderly processes of justice"). But see 5 U.S.C. § 702 ("Nothing [in the APA] (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.").
244. John F. Duffy, Administrative Common Law in Judicial Review, 77 TEX. L. REV. 113, 152 (1998).
245. See, e.g., Guchshenkov v. Ashcroft, 366 F. 3d 554, 556 (7th Cir. 2004) ("The petitions reflect the continuing difficulty that the board and the immigration judges are having in giving reasoned explanations for their decisions to deny asylum."). But see id. at 560 (Evans, J., concurring) ("Although I join the majority in voting to remand these two consolidated asylum petitions for further proceedings, I write separately to express my concern, and growing unease, with what I see as a recent trend by this court to be unnecessarily critical of the work product produced by immigration judges who have the unenviable duty of adjudicating these difficult cases in the first instance.").
246. Nina Bernstein, Immigration Judges Facing Yearly Performance Reviews, N.Y. TIMES, Aug. 10, 2006, at A14.
247. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), superseded by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5.
248. Martha Chamallas, Ledbetter, Gender Equity and Institutional Context, 70 OHIO ST. L.J. 1037, 1038 (2009) (citing Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5).
249. Another example is when the Supreme Court held "that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe." United States v. U.S. Dist. Court for the E. Dist. of Mich., S. Div., 407 U.S. 297, 324 (1972)
250. It took six years for Congress to debate and propose these standards, but it ultimately responded by enacting the Foreign Intelligence Surveillance Act, Pub. L. No. 95-511, 92 Stat. 1783 (1978). David S. Eggert, Note, Executive Order 12, 333: An Assessment of the Validity of Warrantless National Security Searches, 1983 DUKE L.J. 611, 626
251. For exhaustive empirical work on congressional overrides of the Supreme Court's statutory interpretations, see Matthew R. Christiansen & William N. Eskridge, Jr., Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967-2011, 92 TEX. L. REV. 1317 (2014)
252. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331 (1991).
253. A number of these congressional tools are explored in the context of independent financial regulators' failure to adequately conduct cost-benefit analysis in PAUL ROSE & CHRISTOPHER J. WALKER, THE IMPORTANCE OF COST-BENEFIT ANALYSIS IN FINANCIAL REGULATION 9-16 (2013), available at http://ssrn.com/abstract=2231314.
254. Many of these forms of congressional influence - including oversight committees and inspectors general - are among the tools Jack Goldsmith includes in his "synopticon" for "watching and checking the presidency." JACK GOLDSMITH, POWER AND CONSTRAINT: THE ACCOUNTABLE PRESIDENCY AFTER 9/11, at 92-93, 99, 206-07 (2012).
255. Gillian Metzger, Serial Litigation in Administrative Law: What Can Repeat Cases Tell Us About Judicial Review?, JOTWELL (June 25, 2012), http://adlaw.jotwell.com/serial-litigation-in-administrative-law-what-can-repeat-cases-tell-us-about-judicial-review/.
256. See Margaret Gilhooley, The Availability of Decisions and Precedents in Agency Adjudications: The Impact of the Freedom of Information Act Publication Requirements, 3 ADMIN. L.J. 53, 53 (1989).
257. See Montes-Lopez v. Holder, 694 F. 3d 1085, 1094 (9th Cir. 2012) (finding due process violation in immigration hearing on remand)
258. Valdiviezo-Galdamez v. Attorney Gen., 663 F. 3d 582, 612 (3d Cir. 2011) (remanding on different question of statutory interpretation)
259. Castañeda-Castillo v. Holder, 638 F. 3d 354, 363 (1st Cir. 2011) (remanding on different legal question)
260. Ramirez-Peyro v. Holder, 574 F. 3d 893, 906 (8th Cir. 2009) (remanding to the BIA to resolve additional factual issues).
261. See Yusupov v. Attorney Gen., 650 F. 3d 968, 993 (3d Cir. 2011).
262. Castañeda-Castillo v. Holder, 676 F. 3d 1, 3 (1st Cir. 2012).
263. Ucelo-Gomez v. Gonzales, 464 F. 3d 163, 165 (2d Cir. 2006) (per curiam).
264. Ucelo-Gomez v. Mukasey, 509 F. 3d 70, 72 (2d Cir. 2007).
265. Yusupov v. Attorney Gen., 650 F. 3d 968 (3d Cir. 2011).
266. Valdiviezo-Galdamez v. Attorney Gen., 663 F. 3d 582 (3d Cir. 2011).
267. Ramirez-Peyro v. Gonzales, 477 F. 3d 637 (8th Cir. 2007).
268. Ramirez-Peyro v. Holder, 574 F. 3d 893, 897-98 (8th Cir. 2009).
269. Castañeda-Castillo v. Gonzales (Castañeda I), 464 F. 3d 112 (1st Cir. 2006)
270. vacated and remanded on reh'g en banc, Castañeda II, 488 F. 3d 17 (1st Cir. 2007) (en banc); Castañeda-Castillo v. Holder (Castañeda III), 638 F. 3d 354 (1st Cir. 2011)
271. Castañeda-Castillo v. Holder (Castañeda IV), 676 F. 3d 1 (1st Cir. 2012).
272. Sinha v. Holder, 564 F. 3d 1015, 1026 (9th Cir. 2009).
273. Sinha v. Holder, No. 07-72289 (9th Cir. Dec. 23, 2010)
274. The court excused the parties for failure to comply with this requirement. See Sinha v. Holder, No. 07-72289 (9th Cir. Feb. 11, 2011).
275. Negusie v. Holder, 555 U.S. 511 (2009).
276. Negusie v. Holder, No. 06-60193 (5th Cir. Apr. 13, 2009) (per curiam).
277. Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 WM. & MARY L. REV. 1575, 1587-88 (2001).