Legal Opinion · Concurrence
Comcast Corp. v. Federal Communications Commission
Court of Appeals for the D.C. Circuit
Decided August 28, 2009No. 08-1114Published
1ConcurrenceRandolph, Senior Circuit Judge
I continue to believe that whenever a reviewing court finds an administrative rule or order unlawful, the Administrative Procedure Act requires the court to vacate the agency’s action. Checkosky v. SEC, 23 F.3d 452, 491 (D.C.Cir.1994) (separate opinion of Randolph, J.).
Section 706(2)(A) of the APA could not be clearer: a court faced with an arbitrary and capricious agency rule or order “shall hold unlawful and set aside” that agency action. “Set aside” means vacate, according to the dictionaries and the common understanding of judges, to whom the provision is addressed. And “shall” means…
2Cases cited16 opinions
- Citizens to Preserve Overton Park, Inc. v. VolpeSupreme Court of the United States · 1971
- Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug AdministrationCourt of Appeals for the D.C. Circuit · 2005
- Hecht Co. v. BowlesSupreme Court of the United States · 1944
- Miller v. FrenchSupreme Court of the United States · 2000
- Tourus Records, Inc. v. Drug Enforcement AdministrationCourt of Appeals for the D.C. Circuit · 2001
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