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.”
7 U.S.C. § 6501. The OFPA established the National Organic Standards Board (“NOSB”) to
“provide recommendations to the Secretary [of Agriculture] regarding . . . implementation” of
the organic certification program. 7 U.S.C. § 6518(k)(1); Organic Trade Ass’n v. U.S. Dep’t of
Agriculture (“Organic Trade Ass’n I”), 370 F. Supp. 3d 98, 101 (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, 82 Fed. Reg. 7,042 (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 id.
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, 2017 WL 280678, 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”), 82 Fed.
Reg. 9,967 (Feb. 9, 2017); National Organic Program (NOP); Organic Livestock and Poultry
Practices (“May Delay Rule”), 82 Fed. Reg. 21,677 (May 10, 2017); National Organic Program
(NOP); Organic Livestock and Poultry Practices (“November Delay Rule”), 82 Fed. Reg. 52,643
(Nov. 14, 2017); see also Organic Trade Ass’n I, 370 F. Supp. 3d at 104. 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, 82 Fed. Reg. 59,988 (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”), 83 Fed. Reg. 10,775 (Mar. 13, 2018). The basis for the USDA’s
withdrawal of the OLPP Rule was two-fold: (1) “nothing in [7 U.S.C. § 6509] 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.” Id. at 10,776-79. 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, 2020 WL 12118917, 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”), 85 Fed. Reg. 57,937, 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. Id. 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.” Id.
(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, 2022 WL 658965 (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. Id. at *5. 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, 857
F.3d 379, 381 (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, 857
F.3d at 381. 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.” Id. at 387; accord Keltner v.
United States, 148 Fed. Cl. 552, 562 (2020). Courts have described this as a “threshold
requirement,” see American Waterways Operators v. Wheeler, 427 F. Supp. 3d 95, 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,
901 F.3d 414, 436 (D.C. Cir. 2018) (quoting Limnia, Inc. v. Dep’t of Energy, 857 F.3d at 386).
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, 901 F.3d at 436. “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, 901 F.3d at 436 (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, 901 F.3d at 436 (quoting Ethyl
Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993)). If a request for remand is frivolous or
made in bad faith, however, “it is appropriate to deny remand.” Id.
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, 901 F.3d at 436); Clean Wisconsin v.
EPA, 964 F.3d 1145, 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, 2022 WL 370559, 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, 2019 WL 2476614, 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.” Id. 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, 857 F.3d at 386. 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, 901 F.3d at 437, 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, 857 F.3d at 386. 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, 857 F.3d at 387, 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, 2022 WL 658965, 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, 142 F.
12 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, 325 F. Supp. 3d 18, 23 (D.D.C. 2018) (quoting Ryan v. Bentsen, 12
F.3d 245, 249 (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, 325 F. Supp. 3d at 23. 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, 2022 WL 658965, 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, 206
F.3d 1286, 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, 427 F. Supp. 3d 95, 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, 901 F.3d 414 (D.C. Cir. 2018); Limnia, Inc. v. United States Dep’t of
Energy, 857 F.3d 379 (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, 370 F. Supp. 3d at 111; see Center for Sci.
in the Pub. Interest v. Regan, 727 F.2d 1161, 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, 746 F.3d 1102, 1110 (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, 725 F.3d 230, 244 (D.C. Cir. 2013); Delta Air Lines, Inc. v. Exp.–Imp. Bank, 718
F.3d 974, 978 (D.C. Cir. 2013); Advocates for Highway & Auto Safety v. Fed. Motor Carrier
Safety Admin., 429 F.3d 1136, 1151 (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, 746 F.3d at 1110 (quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988
F.2d 146, 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, 282 F.
Supp. 3d 91, 108-09 (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, 951 F.Supp.2d 1100, 1106 (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, 566 F.3d 193, 198 (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, 746 F.3d at 1110
(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, 2022 WL
658965, at *5; see also Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d at 198 (“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, 746 F.3d at 1110. 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, 2022 WL 658965, at *5, *1. The Court therefore
concludes that the “disruptive consequences of vacatur,” vastly outweigh maintaining the status
quo. Allina Health Servs. v. Sebelius, 746 F.3d at 1110. 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