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The Administrative Procedure Act’s Stay Provision: Bypassing Scylla and Charybdis of Preliminary Injunctions

Frank Chang
85 Geo. Wash. L. Rev. 1529

Federal courts draw much attention by sweepingly blocking many agency actions with preliminary injunctions. Some of these preliminary injunctions are nationwide, but others are geographically limited. This Essay diagnoses two problems associated with preliminary injunctions in administrative law cases. Nationwide preliminary injunctions, as many commentators point out, are fraught with problems: the lack of clear doctrinal guidance, the risk of conflicting injunctions, the incentive for forum shopping, and the lack of “percolation” of legal issues. The alternative is not great either. Geographically limited preliminary injunctions would allow the agency to “nonacquiesce” and commence enforcing the challenged program elsewhere while judicial review is pending. This makes it more difficult for the court to “set aside” a partially- or fully-implemented program at the end of review.

There is another way. 5 U.S.C. § 705 allows “[t]he reviewing court” to issue a stay to postpone the effective date of an agency action. Unlike an injunction, which orders a person to act or not to act, a stay postpones the effective date and suspends the enforceability or legal basis of an action. This Essay examines the text, the caselaw, and the usage of 5 U.S.C. § 705, and offers how it may alleviate the problems of conflicting injunctions and agency nonacquiescence at the preliminary stage of litigation.

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