Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 66 of 67 PageID 4488
When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.
5 U.S.C. § 705 (emphasis added).
The Fifth Circuit has acknowledged “meaningful differences between an injunction, which is a ‘drastic and extraordinary remedy,’ and vacatur, which is ‘a less drastic remedy.’” Texas v. Biden, 2022 WL 17718634 at *7 (quoting Texas v. United States, 40 F.4th at 219). Whereas an injunction “tells someone what to do or not to do,” a vacatur only reinstates “the status quo absent the unlawful agency action and neither compels nor restrains further agency decision-making.” Id. (internal marks omitted). A Section 705 stay can “be seen as an interim or lesser form of vacatur under Section 706.” Id. “Just as a preliminary injunction is often a precursor to a permanent injunction, a stay under Section 705 can be viewed as a precursor to vacatur under Section 706.” Id.; see also Nken, 556 U.S. at 428–29 (a stay “temporarily suspend[s] the source of authority to act — the order or judgment in question — not by directing an actor’s conduct”). “Motions to stay agency action pursuant to [Section 705] are reviewed under the same standards used to evaluate requests for interim injunctive relief.” Id. at *10 (citing Affinity Healthcare Servs., Inc. v. Sebelius, 720 F. Supp. 2d 12, 15 n.4 (D.D.C. 2010)); see also Nken, 556 U.S. at 434; Texas v. U.S. Env’t Prot. Agency, 829 F.3d at 435. Because the Court finds injunctive relief is generally appropriate, Section 705 plainly authorizes the lesser remedy of issuing “all necessary and appropriate process” to postpone the effective date of the challenged actions. “Courts — including the Supreme Court — routinely stay already-effective agency action under Section 705.” Id. at *8 (emphasis added) (collecting cases).
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