UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) ORGANIC TRADE ASSOCIATION, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-1875 (PLF) ) UNITED STATES DEPARTMENT OF ) AGRICULTURE, et al., ) ) Defendants. ) __________________________________________)

OPINION

Defendants the United States Department of Agriculture (“USDA”), et al., have

filed a Motion for Voluntary Remand (“Def. Mot.”) [Dkt. No. 142]. Plaintiff Organic Trade

Association (“OTA”) opposes the motion and argues that the Court should rule on the merits of

the parties’ cross-motions for summary judgment, which are ripe for review. See Plaintiff’s

Opposition to USDA’s Request for Remand Without Vacatur (“Pl. Opp.”) [Dkt. No. 151]. For

the following reasons, the Court will grant defendants’ motion to remand without vacatur and

deny the summary judgment motions as moot. 1

1 The documents that the Court has considered in connection with the pending motion include: Complaint (“Compl.”) [Dkt. No. 1.]; First Amended Complaint (“First. Am. Compl.”) [Dkt. No. 13]; Second Amended Complaint (“Second. Am. Compl.”) [Dkt. No. 34]; Third Amended Complaint (“Third Am. Compl.”) [Dkt. No. 121]; Joint Status Report and Motion to Stay (“Feb. 19, 2021 Mot. Stay”) [Dkt. No. 128]; Joint Status Report and Stipulation to Lift Stay (“Stip. Lift Stay”) [Dkt. No. 137]; plaintiff’s Motion for Summary Judgment on its Third Amended Complaint (“Pl. Mot. Summ. J.”) [Dkt. No. 140]; defendants’ Motion for Voluntary Remand (“Def. Mot.”) [Dkt. No. 142]; defendants’ Motion for Summary Judgment (“Def. Mot. Summ. J.”) [Dkt. No. 149]; plaintiff’s Opposition to USDA’s Request for Remand Without Vacatur (“Pl. Opp.”) [Dkt. No. 151]; Reply in Support of Defendants’ Motion for I. BACKGROUND

The dispute in this case involves two rules issued by the USDA in relation to

regulating organic livestock and poultry conditions: the Organic Livestock and Poultry Practice

Rule (“OLPP Rule”) and a subsequent rule withdrawing the OLPP Rule (“Withdrawal Rule”).

Because these rules, the legal framework in which they were promulgated, and the history of

litigation in this case all bear on the question of whether the Court should remand this matter to

the USDA, the Court summarizes the background and procedural history of this case.

The USDA issued the OLPP Rule pursuant to its authority under the Organic

Foods Production Act (“OFPA”), which Congress enacted in 1990 “to establish national

standards governing the marketing of certain agricultural products as organically produced

products”; “assure consumers that organically produced products meet a consistent standard”;

and “facilitate interstate commerce in fresh and processed food that is organically produced.”

. The OFPA established the National Organic Standards Board (“NOSB”) to

“provide recommendations to the Secretary [of Agriculture] regarding . . . implementation” of

the organic certification program.

(k)(1); Organic Trade Ass’n v. U.S. Dep’t of

Agriculture (“Organic Trade Ass’n I”),

(D.D.C. 2019).

On April 13, 2016, the USDA published its proposed OLPP Rule pursuant to the

OFPA. See National Organic Program; Organic Livestock and Poultry Practices, 81 Fed.

Voluntary Remand (“Def. Reply”) [Dkt. No. 153]; plaintiff’s Consolidated Reply in Support of OTA’s Motion for Summary Judgment and Opposition to USDA’s Motion for Summary Judgment [Dkt. No. 154]; defendants’ Reply in Support of Defendants’ Motion for Summary Judgment [Dkt. No. 157]; defendants’ Notice of Supplemental Authority [Dkt. No. 162]; defendants’ Response to the Court’s March 9, 2022 Order (Def. Suppl. Br.”) [Dkt. No. 165]; plaintiff’s Motion to Accept Brief for Filing Nunc Pro Tunc [Dkt. No. 166]; plaintiff’s Supplemental Brief in Support of Proceeding to Reach the Merits of this Case (“Pl. Suppl. Br.”) [Dkt. No. 167]; and plaintiff’s Notice of Consent [Dkt. No. 168]. 2 Reg. 21,956 (Apr. 13, 2016). The proposed OLPP Rule sought to “amend the organic livestock

and poultry production requirements by: adding new provisions for livestock handling and

transport for slaughter and avian living conditions; and expanding and clarifying existing

requirements covering livestock health care practices and mammalian living conditions.” Id.

at 21,956. On January 19, 2017, after receiving and considering public comments to the

proposed OLPP Rule, the USDA issued the final OLPP Rule. National Organic Program (NOP);

Organic Livestock and Poultry Practices,

(Jan. 19, 2017). The OLPP Rule

was set to become effective on March 20, 2017, and to be fully implemented, with two

exceptions, by March 20, 2018. See

On January 20, 2017, Donald J. Trump assumed the presidency. That same day,

the Trump administration issued a moratorium mandating reconsideration of all federal

regulations that were finalized under the Obama administration but had not yet taken effect at the

time of the transition. See The White House, Memorandum for the Heads of Executive

Departments and Agencies,

, at *1 (Jan. 20, 2017). Consistent with that

directive, the USDA delayed the effective date of the OLPP Rule three times. National Organic

Program (NOP); Organic Livestock and Poultry Practices (“February Delay Rule”),

(Feb. 9, 2017); National Organic Program (NOP); Organic Livestock and Poultry

Practices (“May Delay Rule”),

(May 10, 2017); National Organic Program

(NOP); Organic Livestock and Poultry Practices (“November Delay Rule”),

(Nov. 14, 2017); see also Organic Trade Ass’n I,

. In analyzing the OLPP

Rule, the USDA further determined that the Rule had “significant policy and legal issues”

requiring additional assessment. May Delay Rule at 21,677.

3 On September 13, 2017, OTA brought suit alleging that the February and May

Delay Rules violated the OFPA and the Administrative Procedure Act (“APA”) by delaying the

effective date of the Final OLPP Rule without proper notice and opportunity for the public to

comment, and without properly consulting the NOSB. Compl. ¶¶ 1-9. OTA filed an amended

complaint on December 8, 2017, alleging that the additional November Delay Rule violated the

OFPA and the APA for similar reasons. First. Am. Compl.

On December 18, 2017, the USDA initiated a proposed rulemaking to formally

revoke the OLPP Rule. See National Organic Program (NOP); Organic Livestock and Poultry

Practices – Withdrawal,

(Dec. 18, 2017) (providing notice and a 30-day

comment period). The USDA published its final Withdrawal Rule, which rescinded the OLPP

Rule, on March 13, 2018. See National Organic Program (NOP); Organic Livestock and Poultry

Practices (“Withdrawal Rule”),

(Mar. 13, 2018). The basis for the USDA’s

withdrawal of the OLPP Rule was two-fold: (1) “nothing in [

] authorize[d] the

broadly prescriptive, stand-alone animal welfare regulations contained in the OLPP final rule”;

and (2) even if the USDA had the statutory authority to issue the OLPP Rule, “the costs of the

OLPP final rule outweigh potential benefits.”

. The USDA noted three primary

errors in the OLPP’s Regulatory Impact Analysis (“RIA”):

First, in applying the discount rates to assess the net present value of the OLPP Rule’s benefits over a 15-year time frame, USDA used an incorrect mathematical formula. . . . Second, the OLPP RIA ‘estimated [costs] to be constant over time’ while its ‘benefits were . . . straight line reduced over time,’ leading to ‘an inconsistency in the treatment of costs and benefits over time.’ . . . [And] third, the measure of benefits in the OLPP RIA was based on research that USDA believed overstated the measure of consumer willingness-to-pay for standards adopted by the Rule.

4 Def. Mot. at 4 (quoting Withdrawal RIA [Dkt. No. 102-2] at 11). After correcting for these

errors, the USDA determined there was “little, if any, economic justification for the OLPP final

rule.” Withdrawal Rule, 83 Fed. Reg. at 10,782.

On April 11, 2018, OTA again amended its complaint, alleging that the

Withdrawal Rule was arbitrary and capricious under the APA and that it violated the OFPA

because the USDA had failed to engage with NOSB in finalizing the Withdrawal Rule. Second

Am. Compl. Judge Rosemary Collyer, who presided over this case prior to her retirement,

granted the USDA’s motion for voluntary remand “to ensure the Court has a complete record at

summary judgment.” Organic Trade Ass’n v. U.S. Dep’t of Agriculture (“Organic Trade

Ass’n II”), Civ. Action No. 17-1875,

, at *2 (D.D.C. Mar. 12, 2020). On

September 4, 2020, after seeking public comment on the RIAs, the USDA issued a final decision

concluding that the OLPP Rule and Withdrawal Rule RIAs were “seriously flawed and thus did

not produce a reliable projection of the costs and benefits.” National Organic Program (NOP);

Final Decision on OLPP Rule and Summary of Comments on the Economic Analysis Report

(“Final Decision”),

, 57,943 (Sept. 17, 2020). The USDA stated that it did

not intend to prepare another RIA because it did not believe the OFPA even granted the agency

authority to issue the OLPP Rule in the first place.

On November 2, 2020, OTA filed its

Third Amended Complaint stating causes of action based on the delay rules and the Withdrawal

Rule. Third Am. Compl. ¶¶ 245-80.

On January 20, 2021, Joseph R. Biden was inaugurated as President of the United

States. Following the change of administration, the parties jointly moved to stay the proceedings

“while they explore[d] the potential for an agreement that would allow resolution of this matter

without further litigation.” Feb. 19, 2021 Mot. Stay at 2. After the parties failed to reach an

5 agreement, the Court entered a scheduling order to govern summary judgment briefing and

directed that if “the United States wishes to file a motion for voluntary remand, it may do so at

any time.” Order [Dkt. No. 139] at 1.

On June 24, 2021, the USDA filed its motion for voluntary remand in order to

“reconsider the prior Administration’s interpretation [in the Withdrawal Rule] that the Organic

Foods Production Act does not authorize . . . the 2017 Organic Livestock and Poultry Practices

(OLPP) final rule.” Def. Mot. at 9 (quoting Press Release, Tom Vilsack, Secretary, U.S.

Department of Agriculture, Statement from Agriculture Secretary Tom Vilsack on Organic

Livestock and Poultry Practices Final Rule (“Secretary Vilsack Press Release”) (June 17, 2021),

https://www.usda.gov/media/press-releases/2021/06/17/statement-agriculture-secretary-tom-

vilsack-organic-livestock-and.) (alterations in original). According to public statements by

Secretary of Agriculture Tom Vilsack, this would involve “a rulemaking to address this [issue]

and to include a proposal . . . [on] topics that were the subject of the OLPP final rule.”

(alterations in original).

On March 4, 2022, Judge Richard Seeborg of the United States District Court for

the Northern District of California issued a decision in a case challenging the exact same rule at

issue here. See Center for Environmental Health v. Vilsack,

(N.D. Cal.

Mar. 4, 2022). Judge Seeborg granted the USDA’s motion to remand without vacatur, remanded

the matter back to the USDA, and ordered the parties to file a status report within 180 days of his

decision.

. On March 9, 2022, this Court ordered the filing of supplemental memoranda

to solicit the parties’ positions regarding the impact of Judge Seeborg’s order on this action. See

Minute Order (Mar. 9, 2022). Both parties stated in their supplemental memoranda that they do

not believe Judge Seeborg’s decision deprives this Court of authority to decide the pending

6 motions for summary judgment. See Pl. Suppl. Br. at 23; Def. Suppl. Br. at 2. OTA requested

that the Court proceed to a merits ruling on the summary judgment motions and deny the

USDA’s motion for remand, while the USDA requested that the Court remand the matter to the

USDA and deny as moot the pending motions for summary judgment. All motions for summary

judgment and the motion for voluntary remand have now been fully briefed.

II. LEGAL STANDARD

“A district court has broad discretion to decide whether and when to grant an

agency’s request for a voluntary remand.” Limnia, Inc. v. U.S. Dep’t of Energy,

(D.C. Cir. 2017). Three considerations inform a court’s exercise of that discretion.

First, “voluntary remand is typically appropriate only when the agency intends to

revisit the challenged agency decision on review.” Limnia, Inc. v. U.S. Dep’t of Energy,

. While this “is not to say that an agency need confess error or impropriety . . . . the

agency ordinarily does at least need to profess intention to reconsider, re-review, or modify the

original agency decision that is the subject of the legal challenge.”

; accord Keltner v.

United States,

, 562 (2020). Courts have described this as a “threshold

requirement,” see American Waterways Operators v. Wheeler,

, 97

(D.D.C. 2019), and it is also the most important hurdle for the agency to clear. “[S]o long as

‘the agency intends to take further action with respect to the original decision on review,’” courts

“generally grant an agency’s motion to remand.” Utility Solid Waste Activities Grp. v. EPA,

(D.C. Cir. 2018) (quoting Limnia, Inc. v. Dep’t of Energy,

).

Second, if the agency appropriately demonstrates its intent to revisit the

challenged decision, a court may consider whether the request for remand is “substantial and

legitimate,” Keltner v. United States, 148 Fed. Cl. at 563, or alternatively, “if the agency’s

7 request appears to be frivolous or made in bad faith,” Utility Solid Waste Activities Grp. v.

EPA,

. “Courts commonly grant such requests when the motion [for remand] is

made in response to intervening events outside of the agency’s control,” American Waterways

Operators v. Wheeler, 427 F. Supp. 3d at 97; but “even if there are no intervening events, the

agency may request a remand (without confessing error) in order to reconsider its previous

position,” Utility Solid Waste Activities Grp. v. EPA,

(quotation marks omitted).

“Remand has the benefit of allowing ‘agencies to cure their own mistakes rather than wasting the

courts’ and the parties’ resources reviewing a record that both sides acknowledge to be incorrect

or incomplete.’” Utility Solid Waste Activities Grp. v. EPA,

(quoting Ethyl

Corp. v. Browner,

(D.C. Cir. 1993)). If a request for remand is frivolous or

made in bad faith, however, “it is appropriate to deny remand.”

Third, the reviewing court “must ‘consider whether remand would unduly

prejudice the non-moving party.’” American Waterways Operators v. Wheeler, 427 F. Supp. 3d

at 98 (quoting Utility Solid Waste Activities Grp. v. EPA,

); Clean Wisconsin v.

EPA,

, 1175-76 (D.C. Cir. 2020). Courts are more likely to find a lack of undue

prejudice where “[g]ranting [the defendant] a voluntary remand will merely put [p]laintiffs in the

materially same position as if the Court were to grant [the defendant] summary judgment.”

Empire Health Found. v. Becerra, Civ. Action No. 20-2149,

, at *5 (D.D.C.

Feb. 8, 2022) (internal quotations omitted). Courts also factor in the potential for unreasonable

delay. See Clark v. Perdue, Civ. Action No. 19-394,

, at * 3-4 (D.D.C.

June 13, 2019) (remanding where “[d]isposing of the Government’s Motion exactly as [the

plaintiff] requests would not . . . necessarily result in less delay than granting the request.”).

8 III. DISCUSSION

Defendants ask the Court to remand “so that USDA can revisit the issues in this

case on its own initiative, through further rulemaking.” Def. Mot. at 1. Specifically, the USDA

seeks to revisit the conclusions that the OLPP rule “was not authorized under the Organic Foods

Production Act,” and “that it was not economically justified.”

The USDA asserts that it now

proposes “to reconsider the justifications for the prior withdrawal and readopt policies embodied

by the OLPP Rule, while simultaneously conducting a new regulatory impact analysis to support

that proposal.” Def. Reply at 1.

A. The USDA Intends to Revisit the Challenged Decision on Remand

On June 17, 2021, Secretary of Agriculture Tom Vilsack issued the following

public statement:

We intend to reconsider the prior Administration’s interpretation that the Organic Foods Production Act does not authorize USDA to regulate the practices that were the subject of the 2017 Organic Livestock and Poultry Practices (OLPP) final rule. I have directed the National Organic Program to begin a rulemaking to address this statutory interpretation and to include a proposal to disallow the use of porches as outdoor space in organic production over time and on other topics that were the subject of the OLPP final rule. We anticipate sending the proposed rule to OMB within six to nine months from the date of the remand. We look forward to receiving public comments on those topics and, after reviewing the comments, USDA will publish a final rule.

See Secretary Vilsack Press Release. The USDA contends that the rulemaking that would result

from this process “if finalized, would moot this case.” Def. Mot. at 9.

Secretary Vilsack’s announcement is powerful evidence that that the USDA

“intends to take further action with respect to the original agency decision on review.” Limnia,

Inc. v. United States Dep’t of Energy,

. The original agency decision that OTA

9 challenges is the Withdrawal Rule, which was premised in part upon the conclusion that the

OFPA does not provide authority to issue the OLPP Rule and that the underlying economic

analysis of the rule was flawed. Withdrawal Rule, 83 Fed. Reg. at 10,776-81. Secretary

Vilsack’s statement announces an explicit intention to “begin a rulemaking to address this

statutory interpretation,” Secretary Vilsack Press Release, and includes “a proposed timeline,”

Utility Solid Waste Activities Grp. v. EPA,

, demonstrating concrete and specific

plans for reconsideration. In the most literal sense, therefore, agency leadership has publicly

stated that the agency intends to revisit the challenged rule.

OTA disagrees with this interpretation, arguing that Secretary Vilsack’s statement

“does not propose to reconsider the original agency decision under review” because it “[i]nstead

. . . proposes a ‘new rulemaking supported by a new economic analysis.’” Pl. Opp. at 11

(quoting Def. Mot. at 14). Yet the “two grounds” that plaintiff identifies as forming the basis of

the USDA’s reasoning in the Withdrawal Rule – lack of statutory authority and flawed economic

analysis – directly correspond to Secretary Vilsack’s statement. See Secretary Vilsack Press

Release; Def. Mot. at 10. 2

In addition to Secretary Vilsack’s statement, the representations in the USDA’s

briefing before this Court support the assertion that the agency intends to swiftly reconsider the

Withdrawal Rule if this case is remanded. The USDA reiterated in its motion to remand that the

agency “has indicated its intent to reconsider the Withdrawal Rule . . . [and] intends to complete

its work on a proposed rule within six-to-nine months of a remand order.” Def. Mot. at 11. The

2 OTA’s underlying concern appears to be that a remand will “leave the litigant facing another multi-year stretch of living without the benefit of the important improvements of the OLPP.” Pl. Opp. at 11. Even if true, this goes to the question of prejudice, discussed below, and cannot support an argument that the agency does not intend to revisit the challenged action on remand. 10 issues that formed the basis for withdrawing the OLPP Rule – namely, the concern that the rule

exceeded statutory authority and was not economically justified – “are under review in this case,

[and] are exactly what USDA intends to reconsider.” Def. Reply at 2-3. The USDA also intends

to take action on the RIA at issue “by preparing a new regulatory impact analysis to support

promulgation of the forthcoming proposed rule.” Id. at 3. The USDA further contends that “[i]f

the anticipated proposed rule is finalized, it would alter the regime created by the Withdrawal

Rule and readopt policies that are the same or similar to those in the OLPP Rule.” Id.

In its supplemental memorandum filed on March 24, 2022, OTA advised the

Court of a new draft rule already submitted by the USDA to the Office of Management and

Budget (“OMB”) and noticed on the OMB website on December 3, 2021. See Pl. Suppl. Mem.

at 3-4; OMB, List of Regulatory Actions Currently Under Review, Organic Livestock and

Poultry Standards (“OLPS Draft Rule”) (Dec. 3, 2021), https://www.reginfo.gov/public/do

/eAgendaViewRule?pubId=202110&RIN=0581-AE06. In the almost four months since the

notice was published, however, neither party brought this OLPS Draft Rule to the Court’s

attention. OTA now asserts that “USDA’s new Draft Rule at OMB greatly weakens if not moots

the USDA’s motion for remand in this case” because “[t]he Draft Rule is not a reconsideration or

re-review of the Withdrawal Rule or that rule’s [RIA] that is challenged in this case and does not

propose to provide the relief sought.” Pl. Suppl. Mem. at 7, 5.

The Court disagrees. In fact, the notice on the OMB website is evidence that that

the USDA not only “intends to take further action,” but has already begun “to take further action

with respect to the original agency decision on review.” Limnia, Inc. v. United States Dep’t of

Energy,

. The fact that the USDA is now working on an updated rule “to clarify

the USDA organic standards for livestock and poultry living conditions and health practices”

11 demonstrates that the agency is serious about following through with the promises made in

Secretary Vilsack’s press release. See OLPS Draft Rule. The Court therefore concludes that the

“threshold requirement,” American Waterways Operators v. Wheeler, 427 F. Supp. 3d at 97, is

satisfied.

B. Substantial and Legitimate Concerns Justify a Remand and the USDA’s Request is Not Frivolous

The USDA’s public and unequivocal statement that it intends to revisit the OLPP

Rule, along with the interpretation of the OFPA used to justify the Withdrawal Rule, suggests

that the USDA’s request for remand is legitimate, and there is nothing in the record to suggest

that it is frivolous or made in bad faith.

The request for remand is a commonsense response to the USDA’s conclusion

that the OLPP RIA was “seriously flawed and thus did not produce a reliable projection of costs

and benefits.” Def. Mot. at 9 (quoting Final Decision, 85 Fed. Reg. at 57,943). While the

agency is not required to confess error in seeking remand, Limnia, Inc. v. United States Dep’t of

Energy,

, the USDA’s acknowledgment that “[i]mplementing the OLPP Rule

based on such a flawed economic analysis is not in the public interest,” Def. Mot. at 9 (quoting

Final Decision, 85 Fed. Reg. at 57,944), underscores the legitimacy of its remand request. As

Judge Seeborg noted in Center for Environmental Health v. Vilsack, “[a]lthough there is some

uncertainty about the issuance and timing of a new rule, the USDA’s intention to move forward

with rulemaking ‘in a matter of months’ does not appear to be in bad faith.” Center for

Environmental Health v. Vilsack,

, at *3.

Moreover, “[g]iven the procedural posture of this case, interests of judicial

economy counsel in favor of a voluntary remand.” FMBE Bank Ltd. v. Lew,

Supp. 3d 70, 74 (D.D.C. 2015). The legal issues in the parties’ cross-motions for summary

judgment are complex and fact-intensive. It simply would not make sense to proceed to

summary judgment and decide “the relative propriety” of the OLPP and withdrawal rules when

the USDA has already acknowledged that both rules “incorporated flawed economic

assumptions.” Def. Mot. at 10. “A remand will allow the case to ‘come before the court in a

posture that facilitates review on the merits,’ . . . [and] more focused judicial review.” Bayshore

Cmty. Hosp. v. Azar,

(D.D.C. 2018) (quoting Ryan v. Bentsen,

(D.C. Cir. 1993)).

OTA’s proposal, by contrast, would be an inefficient way to proceed. It would

make no sense for the Court to invalidate the Withdrawal Rule and reinstate the OLPP Rule, as

OTA requests, Pl. Mot. Summ. J.at 35, now that the USDA has concluded that the analysis that

supported the OLPP Rule in the first instance is fatally flawed.

C. Remand Would Not Unduly Prejudice OTA

OTA contends that remand would result in prejudice to OTA, both because the

delay in implementing the original OLPP rule would exacerbate ongoing market and economic

harms, and because, at the time OTA filed its opposition to the motion to remand, briefing on

summary judgment was already underway. Pl. Opp. at 19-23.

While OTA may have legitimate concerns about delay, this is not a reason to deny

remand. Even if the Court were to reach the merits of the cross-motions for summary judgment,

as OTA requests, and even if OTA were to prevail on summary judgment, the USDA is correct

that “[a]ny victory . . . would be short-lived if the OLPP Rule were reinstated only to be the

subject of new legal challenge[s]” on the basis of the catalogued flaws in the OLPP RIA. Def.

Mot. at 11. There simply is no plausible alternative path forward whereby the Withdrawal Rule

13 is struck down and the OLPP Rule is reinstated for any meaningful amount of time, now that the

USDA has publicly acknowledged the flawed reasoning underlying the OLPP Rule. To be sure,

the remand may cause delay; however, that delay is “time well spent.” Bayshore Cmty. Hosp. v.

Azar,

. Remand is a necessary procedural step for the USDA to reconsider

conclusions in the Withdrawal Rule (i.e., the agency’s statutory authority to promulgate the

OLPP Rule under the OFPA) and to confront the noted defects in the RIAs. OTA instead urges

the Court to “forc[e] a rule onto the public which the agency has acknowledged is unsound[,]

[which] would undermine consumers’ faith in the organic label—the main prejudice Plaintiff[]

seek[s] to avert.” Center for Environmental Health v. Vilsack,

, at *4.

OTA’s next argument, that voluntary remand is particularly inappropriate where it

leaves non-movants subject to a purportedly invalid regulation – here, the Withdrawal Rule –

similarly fails. See Pl. Opp. at 20 (discussing Chlorine Chemistry Council v. EPA,

, 1288 (D.C. Cir. 2000) (denying motion for voluntary remand where remand “would

have left petitioners subject to a rule they claimed was invalid.”)). In contrast to Chlorine

Chemistry Council, where the agency “made no offer to vacate the rule,” 206 F.3d at 1288, here

the USDA seeks to reconsider and remedy the very concerns identified in OTA’s challenge to

the Withdrawal Rule. The parties differ only on whether this should occur through the remand

process or through this Court’s adjudication of summary judgment. 3 The Court concludes that

these concerns are best resolved by remand to the agency.

3 OTA’s reliance on this Court’s determination in American Waterways Operators v. Wheeler,

, is also misplaced. In that case, Judge Amit Mehta determined that environmental plaintiffs would be unduly prejudiced in part because remand would hamper ongoing and “significant environmental progress.” 427 F. Supp. 3d at 99. Here, by contrast, granting the USDA’s motion to remand for further consideration of the Withdrawal Rule does not interfere with any ongoing regulation; if anything, it removes a barrier to reinstating the OLPP Rule. 14 Finally, OTA argues that the USDA’s purpose in seeking voluntary remand is to

moot the case, and according to OTA, “remands for new rulemakings for the purpose of mooting

merit[orious] challenges to existing regulations are inequitable, inherently prejudicial, and

disallowed.” Pl. Opp. at 19 (alterations omitted). The Court does not read or understand the

referenced case law as supporting the foregoing proposition. See generally Utility Solid Waste

Activities Grp. v. EPA,

(D.C. Cir. 2018); Limnia, Inc. v. United States Dep’t of

Energy,

(D.C. Cir. 2017). Even if Utility Solid Waste and Limnia stood for that

proposition, however, this Court has already recognized that it is legitimate for an agency to

moot claims against it by promulgating a new rule in order to “cure previous procedural defects

or supersede previous rules.” Organic Trade Ass’n I,

; see Center for Sci.

in the Pub. Interest v. Regan,

, 1164 (D.C. Cir. 1984) (“[I]t is not improper for an

agency to engage in new rulemaking to supersede [prior] defective rulemaking.”). Concern that

“remand could require [OTA] to submit new or updated evidence and analysis, participate in

another round of notice and comment, and re-litigate the next petition for review” does not

demonstrate undue prejudice. See, e.g., Clean Wisconsin v. EPA, 964 F.3d at 1175-76. For the

foregoing reasons, the Court concludes that granting the USDA’s motion for voluntary remand

will not unduly prejudice OTA.

D. Vacatur

The final question is whether the Court should vacate the Withdrawal Rule before

remanding to the USDA, or deny vacatur and maintain the status quo while the USDA

reconsiders the rule on remand. When a Court identifies an infirmity in a rule, vacatur and

remand is the “normal” remedy. Allina Health Servs. v. Sebelius,

(D.C.

Cir. 2014). The D.C. Circuit has recognized, however, that courts have the discretion to remand

15 without vacatur based on the circumstances of the specific case. See, e.g., Black Oak Energy,

LLC v. FERC,

(D.C. Cir. 2013); Delta Air Lines, Inc. v. Exp.–Imp. Bank,

(D.C. Cir. 2013); Advocates for Highway & Auto Safety v. Fed. Motor Carrier

Safety Admin.,

(D.C. Cir. 2005) (“While unsupported agency action

normally warrants vacatur, . . . this court is not without discretion [to remand without vacatur].”).

In considering whether to vacate, courts weigh “the ‘seriousness of the [rule’s]

deficiencies’ and the likely ‘disruptive consequences’ of vacatur.” Allina Health Servs. v.

Sebelius,

(quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n,

, 150-51 (D.C. Cir. 1993)). The decision whether to vacate is based on equitable

considerations. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers,

(D.D.C. 2017) (“Vacatur is clearly a form of equitable relief that the Court

may award, withhold, and craft to fit the circumstances of the case before it.”) (quoting Sierra

Forest Legacy v. Sherman,

(E.D. Cal. 2013)). The D.C. Circuit has

concluded that “[w]hen an agency may be able readily to cure a defect,” remand without vacatur

is most appropriate. Heartland Reg’l Med. Ctr. v. Sebelius,

(D.C. Cir. 2009).

In this case, equitable considerations weigh heavily in favor of remanding without

vacatur. Here, although the USDA has acknowledged “deficiencies” with the Withdrawal Rule’s

RIA, see Def. Mot. at 6, the Court concludes that these “deficiencies” are minor in light of “the

likely ‘disruptive consequences’ of vacatur.” Allina Health Servs. v. Sebelius,

(quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d at 150).

Furthermore, the USDA “has recognized at least some of the deficiencies [with the Withdrawal

Rule] and is already addressing them.” Center for Environmental Health v. Vilsack,

, at *5; see also Heartland Reg’l Med. Ctr. v. Sebelius,

(“When an

16 agency may be able readily to cure a defect . . . the first factor in Allied–Signal counsels remand

without vacatur.”).

On the other hand, “the likely ‘disruptive consequences’ of vacatur” are serious.

Allina Health Servs. v. Sebelius,

. In fact, vacating the Withdrawal Rule and

reinstating the OLPP Rule makes little sense. Vacatur “would trade one defective rule for

another” and force the OLPP Rule to “immediately spring into effect,” causing “[m]any

regulated entities [to] instantly go out of compliance, without the lead time the OLPP Rule

envisioned.” Environmental Health v. Vilsack,

, at *5, *1. The Court therefore

concludes that the “disruptive consequences of vacatur,” vastly outweigh maintaining the status

quo. Allina Health Servs. v. Sebelius,

. The motion to remand is granted

without vacatur.

IV. CONCLUSION

For the reasons set forth in this Opinion, the Court will grant the USDA’s motion

for voluntary remand without vacatur and deny the parties’ cross-motions for summary judgment

as moot. An Order consistent with this Opinion shall issue this same day.

SO ORDERED.

/s/ PAUL L. FRIEDMAN United States District Judge

DATE: March 30, 2022

17