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Despite the prevailing focus of administrative law on judicial review of agency discretion, scholars are increasingly asking what we can learn about agency discretion in the absence of judicial review. Indeed, such work prompts a reexamination of administrative law and our assumptions about agencies’ legitimacy. When a court invalidates an agency action, the agency’s response on remand is often left open to the agency’s discretion. Agencies frequently have significant latitude in whether, how, and when (if ever) to remedy the initial flaw.

What is the extent of agency discretion following a remand, and how do agencies use that discretion? In this Essay, we sketch the interplay of four variables to form some preliminary hypotheses and lay a foundation for future empirical work. These variables are the nature of the judicial remedy that accompanies the remand, the timing of the required agency response, the valence of the agency action (its alignment with the interests of the group winning the remand and with the then-current presidential administration), and the timing of the presidential administration, paying particular attention to changes that occur or are anticipated to occur during the agency’s formulation of a response on remand.

We suspect that, barring a specific and enforceable judicial directive, agencies have almost as much discretion as they would in the first instance, when deciding whether and how to respond to a judicial remand. We also suggest that whether agencies act with haste or stall is at least somewhat dependent on the alignment of the agency’s policy position with the incumbent President and any anticipated uncertainty regarding a future President. The vigilance of the original litigants, budgetary constraints, newly created statutory deadlines, and other factors also will influence what happens on remand. But we hope that this initial exploration will yield a useful set of testable hypotheses that can inform more detailed future work.

GW Paper Series

GWU Law School Public Law Research Paper No. 2017-6; GWU Legal Studies Research Paper No. 2017-6

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