The All Writs Act, 28 U.S.C. § 1651, authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Act has applications in a variety of contexts, including law enforcement investigations, the detention of military prisoners, and the management of complex multidistrict litigation. Another important but less studied area is the Act’s use as a mechanism to examine ongoing proceedings of federal administrative agencies. While judges generally hesitate to review nonfinal administrative action, courts have found authority under the Act to issue writs of mandamus and injunctions to agencies to compel action or suspend the enforceability of preliminary decisions while parties pursue administrative appeals. This Note examines the use of the All Writs Act to issue such relief and the doctrine governing the standards parties must meet to obtain it. After revealing significant disagreement in the case law as to the appropriate thresholds for court intervention, it advocates for balanced standards designed to preserve agency autonomy and access to judicial review alike.


Under the Administrative Procedure Act (APA), a party that disagrees with a decision or other determination of a federal agency generally may obtain review from a federal court only if the measure qualifies as a final agency action. 1 5 U.S.C. § 704 (2012). Parties typically must also exhaust available administrative remedies and present a dispute that qualifies as ripe. 2 See infra section I.A.2. Situations at times arise, however, in which parties seek judicial oversight of agency action before it meets the traditional criteria of completeness. While judges generally hesitate to interfere in ongoing administrative proceedings out of deference to the role and function of agencies, 3 See, e.g., FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 242 (1980) (explaining the risks of premature judicial review of agency action—namely, “interference with the proper functioning” of agencies); cf. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (describing longstanding principles of deference to agency interpretations of statutes). courts in some instances have granted parties relief from ongoing agency action under the authority of the All Writs Act. 4 28 U.S.C. § 1651 (2012); see also 16 Charles Alan Wright et al., Federal Practice and Procedure § 3942 (3d ed. 2012) (“A substantial number of cases recognize power in the courts of appeals to intervene under the All Writs Act without the pretense of characterizing agency action as final.” (footnote omitted)). A somewhat obscure but persistently important statute, the All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 5 28 U.S.C. § 1651.

Courts have interpreted the broad language of the All Writs Act to enable a variety of actions beyond the usual scope of judicial activity. 6 See 14AA Charles Alan Wright et al., Federal Practice and Procedure § 3691 (4th ed. 2011) (describing the Act’s conferral of power to courts to implement orders and protect their jurisdiction through injunctions and other means); 16 Wright et al., supra note 4, § 3932 (discussing numerous invocations of All Writs Act authority to review and supervise lower courts and agencies). Recent scholarship has addressed prominent applications in the law enforcement and military detention contexts. 7 See infra notes 79, 89 and accompanying text. Few inquiries, however, discuss the Act’s use as a mechanism to examine ongoing agency proceedings. 8 See infra section II.A. Agency cases involving All Writs Act–based relief do not frequently arise, but the limited case law that exists reveals that courts have imposed different thresholds that parties must meet to obtain relief. Most prominently, courts in some cases have required parties seeking injunctions against agencies to make heightened showings on the four traditional factors for equitable relief. 9 See infra section I.A.3.    In other cases, however, courts have taken All Writs Act–based action without any mention of the traditional injunction factors. 10 See infra notes 12–16 and accompanying text. In light of the general principle of judicial respect for ongoing agency proceedings, 11 See supra note 3 and accompanying text. lowering the threshold for regulated parties to win court intervention in nonfinal administrative action would represent a significant challenge to agency authority. At the same time, raising the standard unnecessarily risks barring relief to otherwise deserving plaintiffs.

A recent example illustrates the potential impact of a lowered threshold for review. In July 2016, a federal district court invoked All Writs Act authority to order the Food and Drug Administration (FDA) not to approve or deny pending applications by generic drug manufacturers to sell their versions of a leading cholesterol drug. 12 See AstraZeneca Pharm. LP v. Burwell, 197 F. Supp. 3d 53, 58 (D.D.C. 2016). For a more thorough discussion of this case, see infra section II.C.1. The drug’s original manufacturer had filed suit arguing that any approvals would be based on an incorrect interpretation of the governing statutes and that it would have no opportunity to seek meaningful judicial review without immediate intervention; in response, the court ordered the FDA to announce decisions on the applications at a sealed hearing at which the court would then hear the merits of the statutory challenge. 13 AstraZeneca, 197 F. Supp. 3d at 59. Despite its stated reluctance to “unnecessarily or unduly interfere with the usual operation of the administrative process,” 14 Id. at 56. the court effectively prohibited the FDA from following its normal procedure for approving generic versions of a drug with billions of dollars in annual sales—without a clear finding of irreparable harm to the plaintiff or a similar justification. 15 See Andrew M. Harris et al., AstraZeneca Fails to Keep Generic Crestor Rivals off Market, Bloomberg (July 19, 2016), [] (describing the outcome and the size of the market for the drug). While the court ultimately rejected the manufacturer’s statutory argument at the hearing, 16 See id. such interference in an agency’s procedures, without clearly identifying a doctrinally sufficient threat to the moving party’s interests, represents a concerning development that future parties with stronger substantive arguments may attempt to exploit.

Indeed, while judicial oversight of agency action has relaxed over the past several decades as courts have generally granted greater discretion to agencies, 17 See Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92 Tex. L. Rev. 1137, 1170–73 (2014) (tracing administrative law doctrine and explaining that “courts are not the dominant overseer of agencies that the APA anticipated,” though noting “they can still play a powerful role in particular circumstances”). a well-documented scholarly and judicial campaign that questions and disputes the basic legitimacy of the administrative state is also underway. 18 See Jeremy K. Kessler, The Struggle for Administrative Legitimacy, 129 Harv. L. Rev. 718, 720–23 (2016) (reviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940 (2014)) (describing the growing trend of “historically grounded” challenges to administrative government). While agencies enjoy some degree of “bureaucratic autonomy,” 19 Gillian E. Metzger, The Constitutional Duty to Supervise, 124 Yale L.J. 1836, 1885 (2015) (citing Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928, at 4, 18–27, 353–54 (2001)). a movement based in libertarian ideology and originalist judicial interpretation is actively challenging the modern administrative state’s statutory and constitutional foundations and advocating restoration of a “Constitution in Exile” in which national power is restricted in deference to individual economic interests. 20 See Kessler, supra note 18, at 720–22 & nn.14–15 (noting critiques by scholars including Professors Randy Barnett, Richard Epstein, and Philip Hamburger, as well as ideologically aligned 2015 Supreme Court opinions by Justices Scalia, Thomas, and Alito). In an article reviewing recent decisions of the D.C. Circuit Court of Appeals, Professors Cass Sunstein and Adrian Vermeule have documented one aspect of this movement, a mode of judicial decisionmaking they dubbed “libertarian administrative law.” 21 Cass R. Sunstein & Adrian Vermeule, Libertarian Administrative Law, 82 U. Chi. L. Rev. 393, 398–401 (2015). To be sure, a clear pattern of court decisions applying the All Writs Act to restrict agency authority on such grounds has not yet emerged, and the Supreme Court has given some indication that it disapproves of the libertarian approach. 22 See Kessler, supra note 18, at 720–21 & nn.13–14. Nonetheless, given the recent elevation of outspoken ideological and philosophical opponents of the administrative state to the White House 23 See Leah Litman & Ian Samuel, The Blind Side in Trump’s War on the Administrative State, Take Care (Apr. 17, 2017), [] (discussing President Donald Trump’s selection of leaders for executive agencies who have strongly criticized those agencies in the past). and Supreme Court, 24 See Emily Bazelon & Eric Posner, The Government Gorsuch Wants to Undo, N.Y. Times (Apr. 1, 2017), (on file with the Columbia Law Review) (describing then-Judge Neil Gorsuch’s strong criticism of the Chevron doctrine and general skepticism of congressional delegation of power to agencies). any potential strategy of limiting agency authority and autonomy merits discussion, particularly one that has attracted little scholarly attention thus far. 25 See infra section III.C (expanding on the potential use of the All Writs Act as a deregulatory tool).

This Note examines the development and use of federal court authority under the All Writs Act to issue injunctions and other forms of relief in the context of agency action. Part I provides an overview of administrative law principles that govern agency action, standards for interim relief, and the All Writs Act. Part II explores the uneven doctrine courts have developed surrounding use of the Act in agency suits, describing the reasoning courts have applied in such cases and particularly highlighting variation in the showing required for injunctive relief. Because the doctrine courts have developed for administrative All Writs Act cases has at times drawn from holdings outside the agency context, this Part reviews those areas when relevant as well. Finally, Part III expands on the role of the All Writs Act in contemporary debates about the administrative state’s legitimacy and suggests appropriate standards for All Writs Act–based action that respect both agency authority and regulated entities’ right to seek relief.

I. Statutory and Common Law Background

Several subjects merit review before turning to courts’ application of the All Writs Act in administrative agency litigation. This Part discusses each in turn. Section I.A describes the statutory regime governing federal administrative action and its review by courts; the overlapping doctrines of exhaustion, finality, and ripeness that govern the timing of such review; and the traditional four-factor test for obtaining equitable relief. Section I.B provides a brief historical background on the All Writs Act, as well as the Supreme Court’s core doctrine delineating the Act’s use and scope. It also discusses the forms of court action that the Act authorizes, including both the traditional writs and other forms of interim relief.

A. Taking and Challenging Agency Action

1. The Administrative Procedure Act and Judicial Review of Agency Action. — The APA “provides the statutory structure on which federal administrative law is built.” 26 1 Richard J. Pierce Jr., Administrative Law Treatise § 1.1, at 2 (5th ed. 2010). Among the many innovations of the statute, the APA defines the term “agency action,” which covers all manner of agency activities, including “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 27 5 U.S.C. § 551(13) (2012). While this list of actions includes each type of agency proceeding subject to judicial review in federal court, 28 See FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 247 (1980) (Stevens, J., concurring in the judgment) (“‘Agency action’ is a statutory term that identifies the conduct of executive and administrative agencies that Congress intended to be reviewable in federal court.”). every final disposition of a matter by an agency constitutes either a “rule” or an “order,” 29 Peter L. Strauss et al., Gellhorn & Byse’s Administrative Law 51 (11th ed. 2011). A rule is defined as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.” 5 U.S.C. § 551(4). An order is “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.” Id. § 551(6). the processes for creating which are rulemaking and adjudication, respectively. 30 Rulemaking is the “agency process for formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5). Adjudication refers to the “agency process for the formulation of an order.” Id. § 551(7). Both types of procedure have “formal” and “informal” variants, 31 See Strauss et al., supra note 29, at 51. although formal rulemaking is now rare. 32 Id. at 114. Importantly, any type of agency action that leads to a final disposition but does not constitute informal or formal rulemaking or formal adjudication is an informal adjudication, an “enormous category” of action. 33 Id. at 376.

Assuming a party meets all other hurdles and requirements, 34 See infra section I.A.2 (describing the timing doctrines of exhaustion, finality, and ripeness). it may seek judicial review of agency action through one of three main avenues. 35 See Strauss et al., supra note 29, at 1193 (describing the three methods). Section 702 of the APA provides a basic presumption of judicial review of agency action and inaction. 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”). “Special statutory review” is a cause of action authorized by section 703 of the APA 36 5 U.S.C. § 703. and the “organic statute” that delegates authority to the agency; such statutes typically direct parties to seek review in federal appellate courts. 37 See Strauss et al., supra note 29, at 1193 (drawing the connection between section 703 of the APA and agency organic statutes, which frequently contain provisions authorizing judicial review). “General statutory review,” provided for in section 704 of the APA, 38 5 U.S.C. § 704; see also Strauss et al., supra note 29, at 1195 (identifying section 704 as the authorization for general statutory review). is the means of action available when an agency’s organic statute does not otherwise provide for review. 39 See Strauss et al., supra note 29, at 1195. Importantly, the APA itself does not give subject matter jurisdiction to federal courts to review agency action; 40 See Califano v. Sanders, 430 U.S. 99, 107 (1977) (“We thus conclude that the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.”). instead, the general federal question jurisdiction statute, 28 U.S.C. § 1331, places such jurisdiction in the federal district courts. 41 See Strauss et al., supra note 29, at 1195. Finally, “nonstatutory review” includes “specific relief,” comprising actions for declaratory or injunctive relief and remedies related to specific writs available under the All Writs Act. 42 See id. at 1198–99 (identifying specific relief as a variety of nonstatutory review in order to “correct administrative violations of federal rights”). Section 703 of the APA expressly contemplates the availability of nonstatutory review when special statutory review is unavailable or inadequate. 43 5 U.S.C. § 703 (“The form of proceeding for judicial review is . . . in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction.”); see also Strauss et al., supra note 29, at 1200 (“Section 703 of the APA expressly acknowledges the important tradition of nonstatutory review.”).

2. Exhaustion, Finality, and Ripeness. — Whichever category of action for review a party is able to pursue, the party must also show that the timing of its suit is appropriate. Timing of judicial oversight of agency action is governed by the three overlapping doctrines of exhaustion, finality, and ripeness, which can be difficult to distinguish in many circumstances. 44 See 2 Pierce, supra note 26, § 15.1, at 1218–19 (explaining the overlap between the three doctrines). Notably, in the well-known case Ticor Title Insurance Co. v. FTC, each of the three judges on a D.C. Circuit panel agreed that review of the dispute was premature, but each cited a different doctrine as the reason. 814 F.2d 731, 732 (D.C. Cir. 1987). The exhaustion doctrine traditionally instructed that parties must use and complete agencies’ internal procedures for raising objections to their actions before turning to the courts, 45 See Strauss et al., supra note 29, at 1347 (describing exhaustion). Common law exhaustion doctrine imposes a “flexible and pragmatic” duty for parties challenging agency action to first exhaust any available administrative remedies. 2 Pierce, supra note 26, § 15.2, at 1219. The Supreme Court described the doctrine in 1938 in Myers v. Bethlehem Shipbuilding Corp., identifying a “long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” 303 U.S. 41, 50–51 (1938). In Leedom v. Kyne, the Court granted an exception to the common law duty, however, and upheld an injunction against the NLRB after determining that the agency had clearly acted contrary to an explicit statutory prohibition. 358 U.S. 184, 188–89 (1958); see also 2 Pierce, supra note 26, § 15.2, at 1225 (detailing the Leedom holding). The D.C. Circuit has referred to the Leedom exception as a “Hail Mary pass” only applicable when a statute impliedly precludes review of agency action, the plaintiff has no alternative procedure for review of a statutory claim, and the agency “plainly acts ‘in excess of its delegated powers and contrary to a specific prohibition in the’ statute that is ‘clear and mandatory.’” Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009) (quoting Leedom, 358 U.S. at 188). although parties challenging action to which the APA applies need not exhaust available agency procedures before seeking judicial review unless explicitly required by statute or regulation. 46 Darby v. Cisneros, 509 U.S. 137, 154 (1993) (“[W]here the APA applies, an appeal to ‘superior agency authority’ is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review.”). Congress has in some organic statutes imposed such a mandatory duty to exhaust administrative remedies. See 2 Pierce, supra note 26, § 15.3, at 1241. Finality doctrine, in the form of the final agency action requirement imposed in common law as well as the APA and many agency organic statutes, 47 See 2 Pierce, supra note 26, § 15.11, at 1307–08. weighs whether the agency’s action is complete or rather is part of a larger, ongoing process of decisionmaking. 48 See Strauss et al., supra note 29, at 1347 (describing finality doctrine); see also 2 Pierce, supra note 26, § 15.2, at 1219 (explaining the difficulty of distinguishing finality and exhaustion and noting that most courts that reject claims on exhaustion grounds could alternatively dispose of them under finality doctrine). While the Supreme Court has never fully distinguished finality from exhaustion, it has established a two-part test for whether an agency action is final. See 2 Pierce, supra note 26, § 15.11, at 1308–09 (discussing finality and exhaustion and describing the Court’s test). First, the action must “mark the ‘consummation’ of the agency’s decisionmaking process.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)). The action must also “be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Id. at 178 (quoting Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). Importantly, if a party has not yet exhausted mandatory administrative remedies to challenge an action or is in the process of pursuing them, the action is not final. 49 See 2 Pierce, supra note 26, § 15.1, at 1219. Finally, ripeness doctrine considers whether review of an action is appropriate at the time of the filing or whether waiting for a future event before beginning review would be preferable. 50 See Strauss et al., supra note 29, at 1347. Courts use ripeness in the administrative context primarily to determine whether rules are susceptible to judicial review prior to enforcement (preenforcement review) and to decide whether informal statements of an agency position are reviewable. 51 See 2 Pierce, supra note 26, § 15.1, at 1219 (describing the typical applications of ripeness doctrine in agency action litigation). The Supreme Court announced the prevailing two-pronged ripeness test in 1967 in Abbott Laboratories v. Gardner, holding that courts must evaluate “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” 387 U.S. 136, 149 (1967). The case was the first in which the Court held that a party may seek judicial review of an agency rule before being subject to its restrictions (in other words, obtaining preenforcement review) as long as the two-part ripeness inquiry is satisfied. See id. at 148–49; see also 2 Pierce, supra note 26, § 15.14, at 1359 (explaining this holding’s departure from historical doctrine).

3. Standards for Equitable Relief. — In addition to the three main categories of judicial review of agency action, 52 See supra section I.A.1. the APA contemplates equitable relief to suspend enforceability of agency action pending judicial review, notably mentioning “irreparable injury” as a prerequisite. 53 See 5 U.S.C § 705 (2012) (“On such conditions as may be required and to the extent necessary to prevent irreparable injury, the 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.”). Section 705 was a codification of the holding in Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4 (1942). See Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291, 324 (2003) (identifying the source of section 705). Scripps-Howard is a crucial doctrinal development laying the foundation for later All Writs Act jurisprudence. See infra notes 106–108 and accompanying text. In Virginia Petroleum Jobbers Ass’n v. Federal Power Commission, the D.C. Circuit established a four-factor test to determine whether a party has made an adequate showing to merit a stay of administrative action pending review:

(1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? . . . (2) Has the petitioner shown that without such relief, it will be irreparably injured? . . . (3) Would the issuance of a stay substantially harm other parties interested in the proceedings? . . . (4) Where lies the public interest? 54 259 F.2d 921, 925 (D.C. Cir. 1958). The D.C. Circuit later held that the factors “also apply to motions for preliminary injunctions and motions for stays of district court orders pending appeal.” Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 842 n.1 (D.C. Cir. 1977).

Although first presented in a suit seeking a stay of agency action pending review, the Virginia Petroleum Jobbers factors have become the general test for evaluating motions for preliminary injunctions in civil litigation. 55 See Levin, supra note 53, at 325 n.142 (“With minor variations, the test remains authoritative.”). Courts have further applied the framework in considering motions for temporary restraining orders. 56 See, e.g., Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001) (explaining that “the court considers the same factors in ruling on a motion for a temporary restraining order and a motion for a preliminary injunction,” citing case law and listing the four Virginia Petroleum Jobbers factors). The factors “have been cited and applied in countless lower-court cases.” 11 Charles Alan Wright et al., Federal Practice and Procedure § 2904 (3d ed. 2013). The Supreme Court has generally embraced the factors for stays pending review of orders by lower courts and agencies, 57 See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (identifying the four factors). The Court had earlier noted the “established rule” that parties typically must make an adequate showing of irreparable injury in order to win a stay of an administrative action, citing Virginia Petroleum Jobbers, although it did not discuss the remaining three factors. See In re Permian Basin Area Rate Cases, 390 U.S. 747, 773 (1968) (citing Va. Petroleum Jobbers Ass’n, 259 F.2d at 925). as well as for preliminary injunctions, 58 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20–22 (2008). Notably, although Winter was the first case in which the Court directly named the four factors for preliminary injunctions, it had adopted and applied each in piecemeal fashion as early as the 1930s. See Thomas R. Lee, Preliminary Injunctions and the Status Quo, 58 Wash. & Lee L. Rev. 109, 114 (2001). although the Court has since explained the technical distinction between stays and injunctions and described the different functions of the two forms of relief. 59 See Nken v. Holder, 556 U.S. 418, 428–36 (2009) (explaining that an injunction is “a means by which a court tells someone what to do or not to do,” while a stay “operates upon the judicial proceeding”).

While each of the four traditional factors is a component of the analysis, the most important step to obtain interim relief is a showing that the movant would suffer irreparable harm without immediate court action. 60 11A Charles Alan Wright et al., Federal Practice and Procedure § 2948.1 (3d ed. 2013). Although no concise and exhaustive definition of irreparable harm exists, the D.C. Circuit in Wisconsin Gas Co. v. FERC presented a set of guiding principles particularly applicable in the agency litigation context. 61 758 F.2d 669, 674 (1985). To obtain a stay of final agency action pending judicial review, the movant’s alleged injury “must be both certain and great . . . [and] must be actual and not theoretical,” with an imminence that demands court intervention. 62 Id. Additionally, economic loss alone does not constitute irreparable harm; monetary loss can meet the threshold only if it “threatens the very existence of the movant’s business,” 63 Id. (citing Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 n.2 (D.C. Cir. 1977)). while an inability to obtain “adequate compensatory or other corrective relief . . . at a later date, in the ordinary course of litigation” strengthens the movant’s claim. 64 Id. (internal quotation marks omitted) (quoting Va. Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)). Courts have read this prong of Wisconsin Gas somewhat more favorably to movants in more recent decisions, holding, for example, that “financial injury” may be found irreparable when no adequate relief is available through litigation, without the requirement of an existential threat. See Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015); see also Texas v. EPA, 829 F.3d 405, 434 (5th Cir. 2016) (reading Wisconsin Gas to allow a finding of irreparable harm both when the movant’s existence is threatened and when subsequent adequate relief is unavailable). Other circuits, however, have long maintained a less rigorous threshold for irreparable harm, although outside the context of injunctions against agencies. See, e.g., Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) (explaining that “[a]n anticipated loss of market share growth may suffice as an irreparable harm”); Novartis Consumer Health, Inc. v. Johnson & Johnson Merck Consumer Pharm. Co., 290 F.3d 578, 596 (3d Cir. 2002) (holding that anticipated loss of market share may demonstrate irreparable harm and citing similar conclusions in other circuits). Finally, the movant must provide evidence that the claimed harm is likely to occur and that the harm is caused by the action the party seeks to enjoin. 65 See Wis. Gas Co., 758 F.2d at 674. Thus, merely speculative and likely recoverable economic loss cannot constitute irreparable injury sufficient to merit relief from agency action pending judicial review. 66 See id. at 675.

B. The All Writs Act

1. Background of the All Writs Act. — The All Writs Act is a short but potent statute. 67 28 U.S.C. § 1651(a) (2012). The full text states that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Id. It derives from two provisions of the Judiciary Act of 1789, which authorized the Supreme Court to issue writs to lower federal courts “in cases warranted by the principles and usages of law” and gave all federal courts the power to issue writs “which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” 68 16 Wright et al., supra note 4, § 3933 (internal quotation marks omitted) (quoting Act of Sept. 24, 1789, ch. 20, §§ 13–14, 1 Stat. 73, 80–81). The provisions were consolidated in their current location in the U.S. Code in 1948. 69 See Daniel J. Wacker, The “Unreviewable” Court-Martial Conviction: Supervisory Relief Under the All Writs Act from the United States Court of Military Appeals, 10 Harv. C.R.-C.L. L. Rev. 33, 57 n.113 (1975) (providing a detailed history of the Act’s passage and evolution). The “writs” the statute refers to are the set of special court orders developed in English common law and adopted by early American courts, 70 See Strauss et al., supra note 29, at 1199. A writ is a written court order commanding the recipient to take or refrain from taking an action. See Writ, Black’s Law Dictionary (10th ed. 2014). including such historic instruments as writs of scire facias and ne exeat, 71 See Fruqan Mouzon, Forgive Us Our Trespasses: The Need for Federal Expungement Legislation, 39 U. Mem. L. Rev. 1, 18 (2008) (listing historic common law writs). among others including mandamus, prohibition, certiorari, and habeas corpus. 72 See Joan Steinman, The Newest Frontier of Judicial Activism: Removal Under the All Writs Act, 80 B.U. L. Rev. 773, 778 & n.8 (2000) (detailing the historic and modern writs); see also Lonny Sheinkopf Hoffman, Removal Jurisdiction and the All Writs Act, 148 U. Pa. L. Rev. 401, 433–37 (1999) (providing additional historical discussion); Wacker, supra note 69, at 52 n.94 (detailing the writs). The writs have fallen into varying degrees of obscurity, although criminal defendants at times petition for writs of audita querela (seeking relief due to new evidence or defenses) 73 See Audita Querela, Black’s Law Dictionary, supra note 70. and coram nobis (attacking a judgment based on alleged fundamental errors), 74 See Coram Nobis, Black’s Law Dictionary, supra note 70; see also United States v. Morgan, 346 U.S. 502, 506 (1954) (explaining the statutory basis of the writ). typically with little success. 75 See, e.g., United States v. Lugo, 100 F. Supp. 3d 285, 289–92 (E.D.N.Y. 2015) (defining and discussing the writs and denying petitions for each on the grounds that neither is appropriate when relief is available under the habeas corpus statute, 28 U.S.C. § 2241 (2012)).

While the scope of the historic writs is somewhat limited, the Supreme Court has established principles governing use of the All Writs Act that have expanded the statute’s reach significantly in certain contexts. Perhaps the broadest statement of All Writs Act authority came in United States v. New York Telephone Co., in which the Court found that the Act gives a federal court power to “issue such commands . . . as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” 76 434 U.S. 159, 172 (1977). In appropriate circumstances, such power allows courts to issue binding orders to nonparties to litigation who are “in a position to frustrate the implementation of a court order or the proper administration of justice.” 77 Id. at 174. Somewhat strikingly, the Court in New York Telephone did not identify a common law writ providing the procedural vehicle for the order at issue in the case, a directive by a district court to a telephone provider to install surveillance devices on its lines to assist with an FBI investigation. 78 See id. at 161–63. In a spirited dissent, Justice Stevens argued that this result transformed the All Writs Act into an “open-ended grant of authority to federal courts” by ignoring the statutory requirements that orders be in aid of the court’s jurisdiction and that the means selected be “analogous to a common law writ.” See id. at 187–90 (Stevens, J., dissenting in part). The holding illustrates the broad modern scope of the Act in the law enforcement context. 79 The FBI’s attempt to force Apple to “unlock” the iPhone belonging to the perpetrators of the December 2015 mass shooting in San Bernardino, California, is a prominent contemporary example of the All Writs Act’s use in a law enforcement investigation. See Eric Lichtblau & Katie Benner, Apple Fights Order to Unlock San Bernardino Gunman’s iPhone, N.Y. Times (Feb. 17, 2016),
2016/02/18/technology/apple-timothy-cook-fbi-san-bernardino.html (on file with the Columbia Law Review). For a scholarly account of this use of the All Writs Act, see generally John L. Potapchuk, Note, A Second Bite at the Apple: Federal Courts’ Authority to Compel Technical Assistance to Government Agents in Accessing Encrypted Smartphone Data Under the All Writs Act, 57 B.C. L. Rev. 1403, 1428–30 (2016) (describing use of the All Writs Act to compel nonparties to assist with government investigations).

The Court later provided some limiting clarifications for application of the Act. First and crucially, the Act does not provide an independent source of subject matter jurisdiction to federal courts. 80 See United States v. Denedo, 556 U.S. 904, 913 (2009) (“[T]he All Writs Act and the extraordinary relief the statute authorizes are not a source of subject-matter jurisdiction.”); see also Clinton v. Goldsmith, 526 U.S. 529, 534–35 (1999) (reversing the U.S. Court of Appeals for the Armed Forces’ injunction of a convicted servicemember’s sentence under the All Writs Act on grounds that such action was outside that court’s jurisdiction and that the Act does not itself confer jurisdiction). The principle derives directly from the statute’s requirement that orders under the Act be “in aid of” the issuing court’s jurisdiction, which must already exist on an independent statutory basis. 81 See Clinton, 526 U.S. at 534–35 (“[T]he Act does not enlarge [courts’] jurisdiction.” (citing Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 41 (1985))). Importantly, the jurisdiction to be aided may be merely prospective: An appellate court may issue writs relating to matters that would come before the court if appealed. 82 Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 24–25 (1943). In a key step, the Court in Roche explained that appellate court authority to issue writs under the Act extends beyond writs “in aid of a jurisdiction already acquired by appeal” to allow writs in cases “within [a court’s] appellate jurisdiction although no appeal has been perfected.” Id. (emphasis added). In other words, the Act allows courts to issue writs in aid of appellate jurisdiction they have not yet acquired but would if a dispute reached that level on its merits. This principle of protecting prospective or future jurisdiction derives from the All Writs Act’s purpose of ensuring that lower courts do not “defeat” appellate court jurisdiction by taking actions improperly preventing appeals; the writs that the Act authorizes provide a means to correct such errors. See id. at 25; see also 16 Wright et al., supra note 4, § 3932 (detailing the doctrine allowing courts to issue writs “in aid of appellate jurisdiction yet to be acquired”). Second, the authority the All Writs Act gives to courts is residual in nature; courts may not resort to the Act if another statute specifically addresses the question of court authority at issue in the case. 83 Pa. Bureau of Corr., 474 U.S. at 43. In a key decision, the Court reversed a writ directing the U.S. Marshals Service to supervise a set of state inmates called to testify at a federal trial, finding that the existing federal habeas corpus regime already provided the exclusive mechanism for transport of state prisoners. Id. at 35–38, 43. Importantly, the Court distinguished New York Telephone on grounds that in that case, the All Writs Act granted the district court jurisdiction over the only party that could install court-ordered surveillance devices required for an FBI investigation; here, in contrast, the existing habeas corpus statute provided an adequate solution to bring the inmates to court, and thus the All Writs Act had no application. See id. at 42 n.7. While the Act gives courts power to take extraordinary measures when necessary, “it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.” 84 Id. at 43. The Court later applied this principle to end the practice of using the All Writs Act to remove cases from state to federal court, holding that the removal statute, 28 U.S.C. § 1441, was the exclusive vehicle for removal and could not be circumvented by means of the All Writs Act. See Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32–33 (2002) (“Petitioners may not, by resorting to the All Writs Act, avoid complying with the statutory requirements for removal.”). This principle also draws from the Act’s requirement that court action be “necessary or appropriate,” a prerequisite not met if alternative remedies are available, 85 See Clinton, 526 U.S. at 537 (finding All Writs Act–based relief not necessary or appropriate in light of the petitioner’s other statutory options for relief). although a sufficient need due to “exceptional circumstances” may satisfy this threshold in some cases. 86 See Pa. Bureau of Corr., 474 U.S. at 43 (noting that “exceptional circumstances” in which existing remedies are inadequate may render All Writs Act action “necessary and appropriate”).

2. Forms of Relief Under the All Writs Act. — Before turning to the development and application of All Writs Act authority in administrative agency cases, additional clarification is necessary on the forms of relief on which this inquiry focuses. The most basic form of relief under the All Writs Act is the set of common law writs authorized by the statute. 87 See supra notes 70–74 and accompanying text (describing the writs); see also Strauss et al., supra note 29, at 1200 n.8 (identifying the All Writs Act as the basis for federal court authority to issue writs). While several writs have largely disappeared from modern juris-prudence, 88 See supra text accompanying notes 70–75. new doctrine related to the writ of habeas corpus appeared in the set of cases relating to detainees at the Guantánamo Bay facility. 89 See generally Dimitri D. Portnoi, Note, Resorting to Extraordinary Writs: How the All Writs Act Rises to Fill the Gaps in the Rights of Enemy Combatants, 83 N.Y.U. L. Rev. 293, 304–15 (2008) (describing use of the All Writs Act by Guantánamo detainees). The historical writ that remains most relevant in the administrative context is mandamus, defined as a writ from a reviewing court ordering action by a lower court or other government officer or entity, usually to correct a prior action or failure to act. 90 See Mandamus, Black’s Law Dictionary, supra note 70. Key to note is that common law mandamus, which the All Writs Act authorizes in reviewing courts, is distinct from the writ authorized by the 1962 Mandamus and Venue Act, which gives district courts original jurisdiction over actions “in the nature of mandamus” to compel any federal official to perform a duty owed to a plaintiff. 28 U.S.C. § 1361 (2012); see also 14 Charles Alan Wright et al., Federal Practice and Procedure § 3655 (4th ed. 2015) (describing the distinction between “original mandamus” relief under 28 U.S.C. § 1361 and “appellate mandamus” under the All Writs Act). In Cheney v. United States District Court, the Supreme Court, explaining that the All Writs Act codified the common law writ of mandamus, identified three requirements to obtain a writ: The petitioner must have no other adequate means to attain relief (including appeal), the petitioner must show a “clear and indisputable” right to the writ, and the issuing court must be satisfied that the writ is appropriate under the circumstances. 91 542 U.S. 367, 380–81 (2004) (internal quotation marks omitted) (quoting Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 (1976)); see also Kerr, 426 U.S. at 403 (identifying loosely the three-part test formalized in Cheney). While the Court in Cheney acknowledged the high bar this sets for obtaining a writ, it explained that such a heavy burden is appropriate considering that common law mandamus is a “‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes.’” Cheney, 542 U.S. at 380 (quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)). Nonetheless, the Court stated that the three hurdles, “however demanding, are not insuperable,” citing instances in which the Court issued the writ to remedy significant separation of powers or federalism issues. Id. at 381. Use of the All Writs Act to obtain writs of mandamus to agencies is one of the two forms of relief at issue here.

Beyond the common law writs, lower courts have also derived authority under the All Writs Act to issue injunctions and other forms of equitable relief for a variety of purposes in aid of their jurisdiction. 92 Some scholarship has in fact referred to the injunction as a type of writ available under the All Writs Act, although this characterization is not universal. Compare Wacker, supra note 69, at 52 n.94 (referring to a “writ of injunction”), and Steinman, supra note 72, at 778 & n.8 (same), with 16 Wright et al., supra note 4, § 3932.2 (describing All Writs Act–based power to issue injunctions without reference to a writ). A basic example is the authority to enjoin vexatious litigants from filing repeated and frivolous suits and appeals. 93 See, e.g., Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1056–61 (9th Cir. 2007) (describing and applying standards for issuing an All Writs Act injunction barring future litigation); Green v. Warden, 699 F.2d 364, 367–68 (7th Cir. 1983) (finding authority to enjoin future litigation by a filer of hundreds of suits in the All Writs Act’s provision of authority to act in aid of the court’s jurisdiction). A more substantive power exists to enjoin the filing or proceeding of parallel litigation that threatens the jurisdiction of the issuing court. For example, in In re Baldwin-United Corp., a multidistrict class action against a set of securities brokers, the Second Circuit upheld an All Writs Act injunction preventing states that were not parties from bringing related suits that would affect the rights of plaintiffs or class members. 94 770 F.2d 328, 338 (2d Cir. 1985). The court held that such an injunction was necessary “to prevent third parties from thwarting the court’s ability to reach and resolve the merits of the federal suit before it.” Id. at 338–39. For additional analysis of Baldwin-United, see Joshua J. Wes, Note, The Anti-Injunction and All Writs Acts in Complex Litigation, 37 Loy. L.A. L. Rev. 1603, 1609–10, 1625–27 (2004). Importantly, the Baldwin-United court drew a key distinction between the type of relief issued in the case—an All Writs Act injunction protecting the court’s jurisdiction from interference by nonparties—and All Writs Act injunctions that “preserve the status quo” among parties pending a future decision. 95 In re Baldwin-United, 770 F.2d at 338. Courts have indeed found authority under the All Writs Act to issue such “status quo” injunctions when necessary in aid of their jurisdiction. 96 See 16 Wright et al., supra note 4, § 3932.2 (discussing the power of courts of appeals to issue injunctions under the All Writs Act). In addition to writs of mandamus to agencies under the All Writs Act, doctrine concerning the Act’s use as a means to issue status quo injunctions and stays in the agency litigation context is the second and major focus of this inquiry.

II. All Writs Act Relief in Administrative Agency Litigation

Despite the principles the Supreme Court has articulated about the uses and functions of the All Writs Act, 97 See supra section I.B. the Act continues to generate “considerable litigation and confusion as to its scope.” 98 14AA Wright et al., supra note 6, § 3691. Its role as a mechanism to set aside the timing requirements for judicial oversight of nonfinal agency action is one such area of dispute. The key topic of disagreement and confusion, with important implications, is the showing a party must make to obtain a status quo injunction staying the effect of an agency’s preliminary decision while the party pursues administrative appeals. The other component of agency-related All Writs Act juris-prudence, although less disputed, concerns writs of mandamus to agencies. While the number of cases involving All Writs Act–based review of nonfinal agency action is relatively low, the issue recurs sufficiently often to merit discussion, and such challenges could plausibly become more common in light of the ongoing challenge to the legitimacy of the regulatory state. 99 See supra notes 17–24 and accompanying text. Moreover, the lack of a broadly developed jurisprudence on the issue increases the potential for harm from decisions that diverge on questionable grounds from the doctrine that does exist.

To be sure, their separate historical origins aside, 100 See Clark Byse & Joseph V. Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and “Nonstatutory” Judicial Review of Federal Administration Action, 81 Harv. L. Rev. 308, 318–20 (1967) (discussing the common law origin of mandamus as compared to the equitable nature of injunctions). writs of mandamus and injunctions to agencies are both court directives to compel some type of action, whether it involves issuing or refraining from issuing or enforcing an order, or modifying or stopping a proceeding. Indeed, the Supreme Court in multiple cases has suggested that injunctions compelling action from agencies were equivalent to writs of mandamus. 101 See id. at 331–32 (identifying two cases in which the Court made this assertion). The Court in both cases was considering “mandatory injunctions,” traditionally defined as “[a]n injunction that orders an affirmative act or mandates a specified course of conduct.” Injunction, Black’s Law Dictionary, supra note 70. A prohibitory or negative injunction, in contrast, “forbids or restrains an act.” Id. Notably, the APA references the distinction as well. 5 U.S.C. § 703 (2012). Commentators have long argued, however, that the difference between the two is illusory and neither practical nor helpful to draw. See, e.g., Kenneth Culp Davis, Mandatory Relief from Administrative Action in the Federal Courts, 22 U. Chi. L. Rev. 585, 590 (1955) (“Quibbling about what is affirmative and what is negative [with regard to injunctions] is unprofitable and injurious.”); Developments in the Law—Injunctions, 78 Harv. L. Rev. 994, 1062 (1965) (explaining that any rule based on the distinction between mandatory and prohibitory injunctions is “ridiculously easy to circumvent” because any mandatory injunction can be reframed in prohibitory terms). The conclusion from these observations is that a distinction between writs of mandamus and any type of injunction to agencies must come from differences in their use by litigants rather than any inherent distinguishing qualities. Review of case law, however, reveals that regulated entities seek the two remedies for different purposes and at different moments in the administrative process. Parties petition for writs of mandamus to agencies to halt ongoing proceedings on the basis of some fundamental alleged issue not correctable on review of final agency action 102 E.g., Pub. Util. Comm’r v. Bonneville Power Admin., 767 F.2d 622, 630 (9th Cir. 1985). This use is consistent with broader mandamus doctrine and the limited bases that exist for issuing writs to lower courts. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81 (2004); see also supra note 91 (elaborating on mandamus doctrine). or to compel a decision after an extraordinary delay by the agency. 103 E.g., George Kabeller, Inc. v. Busey, 999 F.2d 1417, 1419–23 (11th Cir. 1993); Telecomms. Research & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 72 (D.C. Cir. 1984); see also infra section II.B.1 (discussing the TRAC case in detail). In contrast, parties move for injunctive relief once the agency has made a preliminary decision and the impacted party seeks to stay its effect while it pursues administrative remedies. 104 E.g., V.N.A. of Greater Tift Cty., Inc. v. Heckler (VNA), 711 F.2d 1020, 1030 (11th Cir. 1983); see also infra section II.B.2 (discussing VNA). While some agencies automatically stay their initial decisions when parties file for administrative review, 105 See, e.g., 29 C.F.R. § 1955.45 (2016) (mandating stays of ALJ decisions on certain Occupational Safety and Health Administration matters pending possible administrative appeal); id. § 4041.44(e) (explaining that requesting reconsideration of certain Pension Benefit Guaranty Corporation decisions results in an automatic stay pending a new decision); 42 C.F.R. § 1005.22 (2016) (providing for an automatic stay of certain Department of Health and Human Services ALJ decisions upon administrative appeal). In contrast, some agencies specify that issuance of a stay is at the agency’s discretion. See, e.g., 34 C.F.R. § 81.20(f) (2016) (granting Department of Education ALJs discretion to decide whether to stay an initial decision when a party appeals); 49 C.F.R. § 1115.3(f) (2016) (granting the Surface Transportation Board discretion as to whether to grant an appeal of certain initial decisions and, if so, whether to stay the initial decision). the All Writs Act operates as a gap-filler to compel those that do not to maintain the status quo until the time of final agency action and judicial review.

This Part provides an overview of the approaches courts have taken in assessing requests for both types of All Writs Act relief against agencies. Section II.A discusses key Supreme Court precedents that are the foundation for this area of doctrine. Section II.B explores the differing paths the U.S. Courts of Appeals for the D.C. and Eleventh Circuits have taken in this area, focusing especially on their divergence as to the showing parties must make to obtain status quo injunctions. Finally, section II.C examines three additional cases that illustrate the need for clearer standards for All Writs Act relief. Such standards will ideally further two complementary values: protecting agencies from unwarranted intervention, but preserving regulated entities’ fair access to review when merited.

A. Foundational Supreme Court Case Law

The Supreme Court established its foundational jurisprudence on the All Writs Act’s role as a basis for review of nonfinal agency action between the 1940s and 1970s. This section provides an overview of the Court’s key holdings as a background to the differing lower court approaches that followed.

1. Basis of the All Writs Act Status Quo Injunction. — The Court’s first significant statement about All Writs Act authority to provide interim relief from agency action came four years before the passage of the APA in Scripps-Howard Radio, Inc. v. FCC. 106 316 U.S. 4 (1942). In finding federal court authority to stay final agency action pending judicial review, the Court noted that while “[n]o court can make time stand still,” appellate courts have always had power under the All Writs Act “to prevent irreparable injury to the parties or to the public” resulting from enforcement of an administrative action that the court might later review and reject. 107 Id. at 9. The Court explained that this authority is “part of [courts’] traditional equipment for the administration of justice,” citing the version of the All Writs Act in force at the time and discussing its inclusion in the first Judiciary Act in 1789. Id. at 9–10. The Court also noted that judicial review of improper administrative action “would be an idle ceremony if the situation were irreparably changed before the correction could be made.” Id. at 10; see also Strauss et al., supra note 29, at 1205 (describing the power to issue stays identified in Scripps-Howard as a provision “[i]f all else fails” in seeking to stay a final agency action pending judicial review). The Court’s notable emphasis on the Act’s purpose as a mechanism to prevent irreparable injury from administrative action was a key development. 108 The Court took care to note, however, that irreparable injury does not result in an automatic stay and that granting of equitable relief remains a matter of judicial discretion. See Scripps-Howard, 316 U.S. at 10. Two decades later, the Court reaffirmed Scripps-Howard in Arrow Transportation Co. v. Southern Railway, noting that Scripps-Howard recognized an All Writs Act power to “preserve the court’s jurisdiction or maintain the status quo by injunction pending review of an agency’s action.” 109 372 U.S. 658, 671 n.22 (1963). Notably, while the Court found it was precluded from issuing the injunction sought against the Interstate Commerce Commission, it was not due to a failure to show irreparable injury, but rather because of a statutory bar to relief. 110 See id. at 675 (Clark, J., dissenting) (identifying the lack of dispute over lower court findings that the challenged agency action would cause irreparable injury to the plaintiffs). The dissent argued that the majority’s statutory conclusion was flawed because it unnecessarily abrogated the “equitable power long recognized as existing in the courts” to grant injunctive relief “in compelling circumstances to prevent an irreparable injury and to maintain the status quo pending . . . [an agency] decision.” See id. at 677–79. In other words, the dissent would have applied the Scripps-Howard doctrine fully, finding sufficient irreparable injury to merit a status quo injunction against the agency under the All Writs Act. See id. at 679–81.

2. The Landmark Precedent of FTC v. Dean Foods. — The Court’s 1966 holding in FTC v. Dean Foods Co. 111 384 U.S. 597 (1966). is “[t]he leading definition of court of appeals power to issue an injunction” under the All Writs Act. 112 16 Wright et al., supra note 4, § 3932.2 n.8. Building directly on Arrow Transportation and applying the prospective jurisdiction doctrine articulated in Roche v. Evaporated Milk Ass’n, 113 319 U.S. 21 (1943); see also supra note 82 (discussing Roche and reviewing courts’ power under the All Writs Act to issue injunctions to protect their prospective jurisdiction). the Court found power under the All Writs Act to enjoin a merger from proceeding before the FTC could rule on its legality. 114 Dean Foods, 384 U.S. at 605 (finding “ample precedent to support jurisdiction of the Court of Appeals to issue a preliminary injunction preventing the consummation of [the] agreement”). The Commission argued that without an injunction to stop the merger, one of the defendant companies would cease to exist, leaving the Commission with no effective remedy should it find the merger illegal. See id. at 599–600. Writing for the majority, Justice Clark explained that “the traditional power” conferred by the All Writs Act, as described in Roche, gives appellate courts authority “to issue injunctions to preserve the status quo while administrative proceedings are in progress and prevent impairment of the effective exercise of appellate jurisdiction.” 115 Id. at 603–04; see also id. at 608 (“It must be remembered that the courts of appeals derive their power to grant preliminary relief here not from the Clayton Act, but from the All Writs Act and its predecessors dating back to the first Judiciary Act of 1789.”). While the Court did not itself detail how failing to grant an injunction would impair its jurisdiction, it quoted at length to this effect from the FTC’s brief, which explained that allowing the merger to proceed would remove the Commission’s authority to rule on the merger and in turn deprive the courts of their jurisdiction to review an FTC order declaring it illegal. See id. at 599–600. Wright & Miller’s Federal Practice and Procedure notes the somewhat tenuous nature of this reasoning, especially considering the possibility that review of such an order might come in a different circuit from the one issuing the All Writs Act injunction or that the FTC might simply approve the merger. 16 Wright et al., supra note 4, § 3942. The treatise asserts, however, that the Court’s primary underlying concern was most likely preserving the FTC’s power, rather than the jurisdiction of a reviewing court, reducing the concern posed by the Commission’s somewhat questionable claim. Id. Without statutory direction from Congress to the contrary, agencies “charged with protecting the public interest” may request that an appellate court use All Writs Act authority to issue status quo injunctions necessary to protect the court’s jurisdiction. 116 See Dean Foods, 384 U.S. at 608. The dissent strenuously opposed this holding, arguing that no precedent supports the finding that an administrative agency with statutorily defined powers can seek relief not expressly authorized by Congress. See id. at 612 (Fortas, J., dissenting). Notably, Congress later gave the FTC such authority to block pending mergers by filing for interim relief. See 15 U.S.C. § 53(b) (2012); see also FTC v. Exxon Corp., 636 F.2d 1336, 1343 (D.C. Cir. 1980) (describing the provision’s enactment and legislative history).

Three components of Dean Foods broadened the doctrine of All Writs Act relief in the agency context. First and critically, unlike in Scripps-Howard and Arrow Transportation, 117 See supra section II.A.1. the Court found authority under the Act to grant an injunction in advance of a final agency action (while the merger review was ongoing). 118 In Scripps-Howard, the plaintiff sought a stay of a final FCC order pending judicial review. Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 5 (1942). In Arrow Transportation, the Court apparently considered the Interstate Commerce Commission’s failure to act within a seven-month statutory period for review of a proposed rate increase to be final agency action. See Arrow Transp. Co. v. S. Ry., 372 U.S. 658, 659–60 (1963). Second, the Court issued an injunction requested by the agency whose action was at issue, rather than a regulated entity. 119 See supra note 115 (describing the multiple steps of reasoning the Court employed to find that granting an injunction to an agency was in aid of court jurisdiction). Finally, the Court did not directly acknowledge the traditional doctrinal considerations for issuing equitable relief. While the Court had not yet formally embraced the D.C. Circuit’s four-factor framework for preliminary injunctions, 120 See supra section I.A.3 (describing the four Virginia Petroleum Jobbers factors and their ultimate adoption by the Court for preliminary injunctions in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20–22 (2008)). The four traditional factors are the likelihood of prevailing on the merits, irreparable harm, harm to other parties from issuing the injunction, and the public interest. See id. it had applied each of the factors as early as the late 1930s. 121 See Lee, supra note 58, at 114. The explanation for this omission may lie in the Court’s acceptance of the Commission’s argument that without an injunction, it would be unable to devise “any effective remedy” for the illegal merger, thus speaking to irreparable harm. 122 FTC v. Dean Foods Co., 384 U.S. 597, 600 (1966). In addition, the Court’s statement that “an agency charged with protecting the public interest” may request an All Writs Act injunction suggests that the Court also considered the injunction to meet the fourth traditional factor. 123 See id. at 608; cf. Virginian Ry. v. Sys. Fed’n No. 40, 300 U.S. 515, 552 (1937) (“Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.”). Nonetheless, the granting of relief without confronting the presumably applicable doctrine is a notable step in the development of All Writs Act jurisprudence, although the key holding of the case remains the application of the prospective jurisdiction doctrine to judicial review of nonfinal agency action. 124 See Richard F. Richards, Preliminary Relief in Employment Discrimination Cases, 66 Ky. L.J. 39, 59 (1977) (“The principle established in Dean Foods is that the All Writs Act allows a federal court to issue interim relief pending the completion of administrative proceedings when such relief is necessary to preserve the court’s ability to issue an effective remedy should its jurisdiction attach.”).

3. The Complication of Sampson v. Murray. — The Court returned to Dean Foods in Sampson v. Murray, 125 415 U.S. 61 (1974). reaching a different but distinguishable result as to the standards for obtaining interim relief from nonfinal agency action under the All Writs Act. The case concerned a dispute between the federal General Services Administration and a probationary worker it had begun proceedings to terminate; the employee sought interim relief under the All Writs Act pending review of her termination by the federal Civil Service Commission. 126 See id. at 62–66. In other words, the plaintiff sought a status quo injunction in the context of nonfinal agency action while she pursued administrative remedies. 127 See id. at 74; see also L. Harold Levinson, Interim Relief in Administrative Procedure: Judicial Stay, Administrative Stay, and Other Interim Administrative Measures, 42 Am. J. Comp. L. (Supplement Issue) 639, 643 (1994) (describing the procedural posture in Murray). In reversing the grant of injunctive relief by the lower courts, which had applied the Virginia Petroleum Jobbers factors, 128 See supra section I.A.3 (describing the four factors). the Supreme Court held that it had to consider not only Scripps-Howard and Dean Foods, 129 See supra section II.A.1–.2. but also the longstanding body of doctrine governing federal employment disputes, in its All Writs Act analysis. 130 Murray, 415 U.S. at 69–71. The Court specifically rejected the direct application of the Dean Foods principle to the case, explaining that unlike the administrative role of the FTC and the appellate jurisdiction of the courts in Dean Foods, “[n]either the reviewing jurisdiction of the Civil Service Commission nor that of the District Court would be similarly frustrated” by denial of a status quo injunction to suspend the plaintiff’s dismissal. Id. at 77–78. Instead, judicial action would interfere with the challenged agency’s processes, rather than support its mission as in Dean Foods. See id. Because the relevant doctrine strongly disfavored court intervention in federal employment disputes, the Court concluded that the employee here had to make a heightened showing of irreparable injury, beyond the showing required under the Virginia Petroleum Jobbers factors. 131 See id. at 84 (“[R]espondent at the very least must make a showing of irreparable injury sufficient in kind and degree to override [the] factors cutting against the general availability of preliminary injunctions in Government personnel cases.”). The Court made clear that federal employment doctrine did not completely eliminate district courts’ “customary authority to grant temporary injunctive relief” under the All Writs Act, as identified in Scripps-Howard, but that a standard application of the traditional four-factor test for injunctive relief was inappropriate. See id. at 80. Temporary loss of income due to termination, the Court held, is typically insufficient for this showing—or even for the standard showing under Virginia Petroleum Jobbers. 132 See id. at 90. In dissent, Justice Marshall argued that there was no basis to require a heightened showing for status quo injunctions in federal employment cases beyond the Virginia Petroleum Jobbers standard of irreparable harm and further that a temporary loss in income could meet the traditional standard. See id. at 100–01 (Marshall, J., dissenting).

The principle underlying the Murray result is that the showing of irreparable harm a party must make to win interim relief from nonfinal agency action may be context dependent; that is, if a robust body of existing doctrine governs the type of agency action at issue—here, federal employment decisions under Civil Service regulations 133 See id. at 81–82 (majority opinion) (describing the statutory and regulatory scheme at issue). —it may impact the threshold for winning a status quo injunction pending administrative appeals. 134 The language of the Court’s conclusion reiterates the subject matter limitation of the holding. See id. at 91–92 (finding that even if the plaintiff had stronger evidence supporting her claim, such a showing would fall “far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case” (emphasis added)); see also Levin, supra note 53, at 324–25 (describing the Murray outcome as one of the “variations” on the Virginia Petroleum Jobbers factors that “have emerged in specific contexts”). The key holding by implication, however, is that the Virginia Petroleum Jobbers factors are the standard test for evaluating motions for status quo injunctions under the All Writs Act pending exhaustion of administrative remedies. 135 This is the logical result of the Court’s holding that the D.C. Circuit erred in applying the Virginia Petroleum Jobbers factors to the case, which the Court refers to as the “traditional standards governing more orthodox ‘stays,’” “orthodox” presumably referring to stays of final agency action pending judicial review. See Murray, 415 U.S. at 83–84 (citing Va. Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921 (D.C. Cir. 1958)). At the very least, the Court recognized the factors as authoritative, if not fully adopting them. The Court also did little to disturb Dean Foods, merely noting that an injunction or stay based only on Dean Foods is unwarranted when the jurisdiction of neither the agency nor the reviewing court will be imperiled by failing to grant interim relief, as the Court found here. 136 Id. at 77 (“Neither the reviewing jurisdiction of the Civil Service Commission nor that of the District Court would be . . . frustrated by a decision of the District Court remitting respondent to her administrative remedy.”). Thus, while the case addressed both Dean Foods and the Virginia Petroleum Jobbers standard, its treatments of each are readily understood as limited to the relatively narrow statutory and procedural context of the case. 137 But see VNA, 711 F.2d 1020, 1030 (11th Cir. 1983) (finding Murray requires heightened showings on all four traditional factors whenever statutes preclude judicial oversight of agency action before exhaustion of administrative remedies); infra notes 159–160 and accompanying text (discussing the VNA standard).

D. Diverging Circuit Court Developments

Following Dean Foods and Murray, the Supreme Court has not weighed in significantly on the use of the All Writs Act in the agency context. 138 The Court in Nken v. Holder reiterated that appellate courts’ authority to stay orders pending review derives from the All Writs Act but did not provide further new analysis. 556 U.S. 418, 426 (2009); see also supra note 59 and accompanying text (discussing the Nken Court’s analysis of the distinction between stays and injunctions). The federal circuit courts, however, have produced varied rulings building from these core precedents, reaching differing results as to the showing parties must make to win status quo injunctions. This section addresses some of this case law in two of the most active circuits, showing that doctrinal evolution as to the proper threshold for All Writs Act injunctions has diverged based on conflicting interpretations of Murray. Also featuring in this jurisprudence, although with less disagreement across circuits, are standards for issuing writs of mandamus to agencies. While the standards for the two forms of relief are separate, close examination of the relevant doctrine is useful to illuminate the full landscape of All Writs Act agency litigation.

1. The D.C. Circuit’s Key Developments and the Wagner Approach to Status Quo Injunctions. — Two key D.C. Circuit decisions in the 1980s built on Dean Foods and Murray to establish and refine approaches for both types of All Writs Act relief. In Telecommunications Research & Action Center v. FCC (TRAC), 139 750 F.2d 70 (D.C. Cir. 1984). For additional context on the historical importance of this case, see generally 3 Pierce, supra note 26, § 18.2, at 1688–89. the court extended Dean Foods in two ways to explicitly derive an All Writs Act–based exception to the final agency action requirement. 140 See supra section I.A.2 (describing the exhaustion, finality, and ripeness requirements for general review of agency action). First, the court affirmed that the Dean Foods prospective jurisdiction doctrine for intervening in nonfinal agency action applies not only when agencies seek relief under the All Writs Act but also in the more common case of regulated entities seeking relief from agency action. 141 See TRAC, 750 F.2d at 76. For background on the prospective jurisdiction doctrine, cogently articulated in Roche v. Evaporated Milk Ass’n, 319 U.S. 21 (1943), see supra notes 82, 113–116 and accompanying text. The Court in Murray had arguably recognized by implication the ability of individuals to petition for All Writs Act review of nonfinal agency action, but TRAC’s articulation of the principle is express. Second, the court interpreted Dean Foods to hold that the All Writs Act authorizes not only status quo injunctions and stays to suspend nonfinal agency action pending administrative appeals but also writs of mandamus to agencies, analogous to writs issued to lower courts. 142 TRAC, 750 F.2d at 76 & n.28. TRAC was not the first D.C. Circuit case to make this finding, but it provided an early and clear articulation of the principle. See Potomac Elec. Power Co. v. Interstate Commerce Comm’n, 702 F.2d 1026, 1032 (D.C. Cir. 1983) (citing the All Writs Act as interpreted in Dean Foods as “empowering a federal court to issue a writ of mandamus to protect its future jurisdiction”). TRAC in fact involved a mandamus petition seeking to “compel unreasonably delayed agency action,” rather than a status quo injunction to suspend an agency decision pending appeal. 143 TRAC, 750 F.2d at 72. The plaintiff nonprofit organization in the case sought a writ to force the FCC after a long delay to decide whether AT&T had to reimburse ratepayers for alleged overcharges. Id. Drawing on earlier D.C. Circuit case law, the court held that petitions for mandamus to agencies should be granted only in cases of “clear right.” 144 Id. at 79 (internal quotation marks omitted) (quoting Ass’n of Nat’l Advertisers v. FTC, 627 F.2d 1151, 1180 (D.C. Cir. 1979) (Leventhal, J., concurring)). Ass’n of National Advertisers in turn drew the standard from the exhaustion exception identified in Leedom v. Kyne. See Ass’n of Nat’l Advertisers, 627 F.2d at 1178–79 (Leventhal, J., concurring) (citing Leedom v. Kyne, 358 U.S. 184, 188–89 (1958)); see also supra note 45 (discussing the context of the Leedom exception). The standard clearly anticipated the general All Writs Act mandamus test the Supreme Court articulated in Cheney v. United States District Court, 542 U.S. 367, 379 (2004). See supra note 91 and accompanying text (discussing Cheney). Although language from TRAC and its predecessors suggests that the “clear right” standard applies to all petitions for All Writs Act intervention in nonfinal agency action, 145 See, e.g., TRAC, 750 F.2d at 79 (“[W]e have found the threshold a litigant must pass to obtain judicial review of ongoing agency proceedings to be a high one.”). the sole focus in these cases on mandamus as the means of intervention makes clear that the standard applies specifically when mandamus, rather than a status quo injunction, is the remedy at issue. 146 Judge Harry T. Edwards, the author of the TRAC opinion, provided support for this reading of the case’s scope the following year. See In re GTE Serv. Corp., 762 F.2d 1024, 1027 (D.C. Cir. 1985) (explaining that “the court [in TRAC] found that claims of unreasonable agency delay represent one narrow class of cases which are within this court’s mandamus jurisdiction” as provided by the All Writs Act (emphasis added)). The court in GTE also reiterated the “well-settled principle” that mandamus is proper to disrupt agency proceedings only if the remedy prescribed by the governing statute is “clearly inadequate,” anticipating the Cheney formalization of the mandamus test. Id. (citing TRAC, 750 F.2d at 78); see also supra note 91 and accompanying text (describing the Cheney test).

A second D.C. Circuit case expanded on Dean Foods and TRAC to identify the proper standard for status quo injunctions under the All Writs Act. In Wagner v. Taylor, a federal personnel dispute under Title VII, the court held that the Dean Foods prospective jurisdiction doctrine allows courts to grant injunctions to “worthy claimants” to “preserve the status quo pending ripening of the claim for judicial review.” 147 836 F.2d 566, 571–72 (D.C. Cir. 1987). The plaintiff in Wagner, an Interstate Commerce Commission employee who had filed an administrative Title VII discrimination claim against the agency, sought relief to prevent the Commission from taking retaliatory action against him while the EEOC reviewed his complaint. Id. at 567–69. Specifically, he requested a status quo injunction to temporarily prevent the enforcement of acts of retaliation and other “reprisals” against him, including a proposed order transferring him to another position, which would have constituted preliminary agency action. Id. at 569–70. The court found that while Title VII requires exhaustion of administrative remedies before judicial review of a discrimination claim, nothing in the statute leads to the conclusion that “Congress intended to divest the federal courts of their ancient equitable power to fashion interim injunctive relief.” Id. at 575. The holding made clear that Dean Foods allows parties aggrieved by agency action to seek not only writs of mandamus, as in TRAC, but also injunctions to restrict agency action pending completion of administrative appeals; 148 The D.C. Circuit had in fact made such a finding some years earlier, although without fully clarifying the applicable standard for obtaining a status quo injunction. See Am. Pub. Gas Ass’n v. Fed. Power Comm’n, 543 F.2d 356, 358 (D.C. Cir. 1976) (explaining that All Writs Act relief is available to parties with “an irreparable injury sustained because an agency order has been made effective pending reconsideration, the Act being employed in aid of jurisdiction to prevent . . . immunity from judicial scrutiny of agency actions before statutory review provisions become available”). crucially, parties must meet only the traditional Virginia Petroleum Jobbers factors to obtain such relief. 149 See Wagner, 836 F.2d at 575–76 (applying the traditional factors to find that the plaintiff had failed to sufficiently show irreparable harm). The court did not directly address the Agency’s argument that Murray required the plaintiff to meet an elevated standard for irreparable harm; 150 See supra note 131 and accompanying text (describing the Murray holding). it did, however, clearly distinguish the “legislative and regulatory framework” of Title VII from the employment statute at issue in Murray, which “posit[ed] a very different relationship between administrative agencies and the courts.” 151 Wagner, 836 F.2d at 575 n.66. Interim injunctive relief, the court explained, plays an “indispensible role . . . in achieving the goals of Title VII.” Id. at 574. This adds support for the conclusion that Murray’s heightened standards for interim relief were a function of the specific doctrinal and statutory background governing the dispute in the case, rather than a rule applying to all All Writs Act status quo injunctions. 152 See supra notes 130–137 and accompanying text (discussing Murray’s reasoning and advancing this reading of its outcome).

Together, these cases reveal that in the D.C. Circuit, courts have authority under the All Writs Act to grant interim relief from nonfinal agency action in the form of status quo injunctions under Wagner, as well as to issue writs of mandamus under TRAC. Under the Wagner approach, parties seeking status quo injunctions to stay preliminary agency action pending administrative review must make a sufficient showing under the four traditional factors that an injunction is merited. They need not make a heightened showing under the Murray standard, at least outside of Murray’s narrow class of government personnel disputes. 153 See supra notes 150–152 and accompanying text (analyzing Wagner and noting its support for the conclusion that Murray’s standard is likely limited to its facts). For writs of mandamus in advance of any agency action, parties must make the more substantial “clear right” showing under TRAC. 154 Presumably the mandamus standard would now be the three-pronged test from Cheney, which the D.C. Circuit has applied in cases involving writs to lower courts, although not yet in an agency case. See, e.g., In re al-Nashiri, 791 F.3d 71, 78–82 (D.C. Cir. 2015) (citing Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81 (2004)). Notably, the D.C. Circuit recently added one other detail to its mandamus doctrine, holding that a petitioner seeking All Writs Act mandamus under TRAC must initiate a proceeding before the agency or a lower court in order to implicate the appellate court’s prospective jurisdiction and thus enable relief. 155 See In re Tennant, 359 F.3d 523, 528–29 (D.C. Cir. 2004). As in TRAC, the petitioner in Tennant sought a writ of mandamus to compel agency action, rather than to suspend enforceability pending administrative appeals of an action already taken. Id. at 526–27. Without an ongoing proceeding that can be appealed, writs from a reviewing court cannot be “in aid of” the appellate court’s prospective jurisdiction under the All Writs Act. 156 See id. at 529 (internal quotation marks omitted) (quoting 28 U.S.C. § 1651(a) (2000)). The opinion by then-Judge John Roberts noted that support for the holding included Marbury v. Madison, which found that the Supreme Court’s mandamus jurisdiction “was limited to review of ‘proceedings in a cause already instituted.’” Id. at 530 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803)).

2. The Eleventh Circuit and the VNA Approach to Status Quo Relief. — The Eleventh Circuit has issued a number of rulings since the 1980s that diverge from the D.C. Circuit’s approach to All Writs Act injunctions under Dean Foods and Murray. 157 In contrast, Eleventh Circuit case law is consistent with the D.C. Circuit with regard to the standard for All Writs Act mandamus. See, e.g., George Kabeller, Inc. v. Busey, 999 F.2d 1417, 1421–23 (11th Cir. 1993) (citing and applying the TRAC doctrine to deny a writ of mandamus against the Federal Aviation Administration). While each of the major cases has notably cast doubt on the accuracy of the previous ruling’s doctrine, each is worth reviewing. In the major case of note, V.N.A. of Greater Tift County, Inc. v. Heckler (VNA), the court interpreted Murray to find that whenever an agency’s organic statute limits judicial review of final agency action before exhaustion of administrative remedies, 158 See 711 F.2d 1020, 1031–33 (11th Cir. 1983). This broad reading of Murray, applying its holding on All Writs Act injunctions to a wide range of agency action, is the inverse of the D.C. Circuit’s narrow interpretation in Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987). See supra notes 150–152 and accompanying text (discussing Wagner). parties seeking All Writs Act status quo injunctions to stay nonfinal action must make a heightened showing on all four traditional factors for an injunction, 159 711 F.2d at 1030. The court developed its own heightened standards for each factor (including a “virtual certainty of irreparable injury”), none of which it found the plaintiff had met. See id. at 1033–35. not only the irreparable harm prong as in Murray. 160 See id. at 1029–30. The court in fact concluded that Murray had implicitly required a heightened showing on all four factors and merely focused on irreparable injury because it was “the essential weakness” in the plaintiff’s case. Id. The court cited in support an opinion by Murray’s author, then-Justice William Rehnquist, identifying irreparable harm and probability of success on the merits as factors a court must consider in staying the action of an administrative agency. See id. at 1030 (citing Coleman v. Paccar Inc., 424 U.S. 1301, 1305 (Rehnquist, Circuit Justice 1976)). Justice Rehnquist made no apparent mention of heightened standards in the case, however, merely finding that the lower court had improperly failed to sufficiently consider the traditional factors in staying a Department of Transportation ruling pending judicial review. See Coleman, 424 U.S. at 1308. While recognizing the Dean Foods prospective jurisdiction doctrine, 161 See supra note 115 and accompanying text (describing the doctrine). the court found that Murray had replaced it, at least for any case in which parties seek interim relief from agency action despite limitations on preexhaustion judicial oversight. 162 VNA, 711 F.2d at 1029–30 & n.25 (“Murray neither overruled Dean Foods nor specifically limited Dean Foods to its facts, but the conclusion is inescapable that Murray replaces the Dean Foods analysis.” (citation omitted)). The proper analysis under Murray, the court reasoned, is a two-step determination for whether a statutory limit to preexhaustion review mandates a heightened showing on the traditional factors. 163 See id. at 1029. Such an inquiry must consider both whether refusal to grant the relief would defeat the court’s review jurisdiction per the All Writs Act and whether Congress had intended to allow for such status quo injunctions. 164 Id. Because neither prong was met here, the court found, the plaintiff home health provider had to make a heightened showing for an injunction to maintain its normal Medicare reimbursements pending its administrative appeal of an initial decision to suspend them. 165 See id. at 1031–35. The court found that the plaintiff had not met the standard, holding that under the case’s reading of Murray, even a plaintiff’s imminent bankruptcy could not constitute sufficient harm to the court’s jurisdiction to merit All Writs Act intervention. 166 See id. at 1031, 1034–35. In dissent, the Chief Judge of the Eleventh Circuit agreed with the panel majority as to the two-step review under Murray but differed sharply as to its application of the framework. See id. at 1035–36 (Godbold, C.J., dissenting). The dissenting judge found that the plaintiff’s likely bankruptcy without an injunction was sufficient to defeat the court’s potential jurisdiction under Dean Foods and Murray and that failing to issue the injunction would also undermine Congress’s intent because the plaintiff’s bankruptcy would also defeat the jurisdiction of the agency reviewing the plaintiff’s ongoing administrative appeal. See id. at 1036–37.

While VNA set forth a significant amount of novel All Writs Act doctrine based on this questionable expansion of Murray’s narrowly focused holding, 167 See supra notes 135–136 and accompanying text (discussing Murray’s reach). a subsequent Eleventh Circuit case, Klay v. United Healthgroup, 168 376 F.3d 1092 (11th Cir. 2004). The case involved a group of physicians arguing that a set of national health management organizations had conspired to underpay them; the plaintiffs sought an All Writs Act injunction to prevent the defendant from compelling arbitration, which the district court granted, finding the relief necessary to protect its jurisdiction over the claims. See id. at 1095–96. cast VNA’s precedential value into doubt while establishing another new All Writs Act analysis. Although the case lacks a direct application to agency litigation, its reliance on doctrine from agency cases and impact on subsequent decisions and commentary give it relevance here. The court’s innovation was what appears to be a wholly new typology for federal court injunctions. It defined three varieties and their qualities: the “traditional” injunction, an interim or permanent remedy for breaches of common law, statutory, or constitutional rights, requiring a showing under the traditional four-factor test; the “statutory injunction,” available when a statute creates standards for granting an injunction; and finally, the All Writs Act injunction, predicated not on a plaintiff’s cause of action but rather on a threat to the court’s past orders and judgments or ongoing or prospective proceedings. 169 See id. at 1097–100. The court notably cited precedents drawing on Dean Foods for the finding that All Writs Act injunctions may be needed to safeguard “potential future proceedings.” See id. at 1099 & n.10.

The distinctive feature of the All Writs Act injunction, the Klay court held, is that the traditional four factors are irrelevant “because a court’s traditional power to protect its jurisdiction, codified by the Act, is grounded in entirely separate concerns” from those animating the traditional four-factor analysis. 170 Id. at 1100. The court listed cases in support of this finding and in a footnote determined that it was not bound by earlier precedent to the contrary from its own circuit, including VNA, 171 See supra notes 158–166 and accompanying text (discussing VNA). which it found had improperly assumed that the traditional factors applied to All Writs Act injunctions (without discussing the additional complication of the heightened standards derived and applied in the case). 172 See Klay, 376 F.3d at 1100 n.12 (explaining that VNA “should be read as closely confined to its specific facts”). In the immediately subsequent footnote, however, the court stated that “a district court may not evade the traditional requirements of an injunction by purporting to issue what is, in effect, a preliminary injunction under the All Writs Act.” Id. at 1101 n.13. The court pointed to a 1979 former Fifth Circuit case, Florida Medical Ass’n v. U.S. Department of Health, Education & Welfare, in which that court found that a district court lacked jurisdiction under the All Writs Act to enjoin the defendant Department from releasing a national list of doctors participating in Medicare. See id. (citing 601 F.2d 199 (5th Cir. 1979)). The key factor apparently distinguishing the case for the Klay court was that the relief sought was a “textbook definition of a preliminary injunction,” issued “to preserve the status quo and prevent allegedly irreparable injury until the court had the opportunity to decide whether to issue a permanent injunction.” Id. Thus the Klay court synthesized the case’s holding to be that “a court may not issue an order under the All Writs Act, circumventing the traditional requirements for an injunction, when a party is in reality seeking a ‘traditional’ injunction,” which requires consideration of the four factors. Id. How this differed from VNA is unclear. On these grounds, the court reversed the lower court ruling before it for erroneously applying the traditional factors to a motion for an All Writs Act injunction. 173 See id. at 1112–13.

While Klay established a new framework for All Writs Act injunctions, like VNA before it, another in-circuit precedent has called it into question. In Alabama v. United States Army Corps of Engineers, one stage of a complex interstate dispute over the allocation of water in a Georgia reservoir, an Eleventh Circuit panel reviewed a preliminary injunction issued to stay implementation of a settlement agreement entered by the Corps. 174 424 F.3d 1117, 1124–27 (11th Cir. 2005). In granting the injunction, the district court had considered the four traditional factors. 175 See id. at 1125–26. Weighing whether the lower court abused its discretion, the Eleventh Circuit rejected the appellees’ argument that the injunction was in fact an All Writs Act injunction under Klay and that it was therefore unnecessary to consider the four traditional factors. 176 See id. at 1131–32. Importantly, in a footnote to this finding, the court directly questioned Klay’s “abrogation of the traditional injunction requirements” for All Writs Act injunctions, finding that Klay’s conclusion on this point was doubtful in light of the Eleventh Circuit’s “deeply inconsistent” case law on this question. 177 See id. at 1131 n.20.

Despite Alabama’s critique of Klay’s significant shift in All Writs Act doctrine, the Klay framework has been quite influential in recent scholarship concerning the Act. 178 See, e.g., Michael D. Sousa, A Casus Omissus in Preventing Bankruptcy Fraud: Ordering a Search of a Debtor’s Home, 73 Ohio St. L.J. 93, 113 (2012) (citing the questioned Klay finding that the traditional injunction requirements do not apply to All Writs Act injunctions); Portnoi, supra note 89, at 299–303 (describing a four-part set of necessary elements for application of the All Writs Act, heavily relying on Klay’s classification framework and definition of All Writs Act injunctions); Potapchuk, supra note 79, at 1419–26 (citing Klay for a comprehensive definition and discussion of All Writs Act–based injunctions in district courts and their distinction from “traditional” injunctions). This may be a result of the neatness of its injunction classification scheme. Regardless, it seems questionable at best to treat as settled doctrine an isolated and novel circuit court conclusion that was questioned shortly after its release by another panel of the same court. Nonetheless, courts within and outside of the Eleventh Circuit have followed the Klay holding for All Writs Act injunctions, perhaps most notably in the infamous case of Theresa Schiavo, the Florida woman whose family dispute over whether to maintain her artificial life support resulted in federal legislation—although that decision preceded the Alabama case. 179 See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1229 (11th Cir. 2005) (concluding that the plaintiffs’ request for an All Writs Act injunction was an attempt to evade the four traditional injunction factors and denying relief on that basis); see also, e.g., United States v. Benton Cty. Sewer Dist. No. 1., No. 13-00319-CV-W-BP, 2015 WL 10936761, at *3 (W.D. Mo. Dec. 30, 2015) (incorporating the Klay holding that All Writs Act injunctions do not require a showing under the four traditional factors). Interestingly, the small number of agency-related cases that have noted the Klay holding seem to have nonetheless applied the traditional factors. 180 See Huron Mountain Club v. U.S. Army Corps of Eng’rs, No. 2:12–CV–197, 2012 WL 3060146, at *13 (W.D. Mich. July 25, 2012) (noting but declining to apply Klay’s finding on All Writs Act injunctions because of the plaintiff’s low likelihood of success on the merits of its claims); Miccosukee Tribe of Indians of Fla. v. United States, No. 04-21448-CIV, 2008 WL 2967654, at *40–42 (S.D. Fla. July 29, 2008) (noting Klay’s All Writs Act finding but concluding that an injunction in an APA-based challenge was “traditional” and thus applying the four factors); Fla. Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 404 F. Supp. 2d 1352, 1360–61 (S.D. Fla. 2005) (citing Klay in weighing an All Writs Act injunction but nonetheless evaluating the motion in light of the four traditional factors). None of these cases, however, referenced the Alabama suggestion that Klay’s analysis was erroneous, suggesting that the door remains open for a court following Klay to issue an All Writs Act injunction against an agency without considering the likelihood of irreparable harm to the moving party.

Despite the somewhat unsettled nature of its All Writs Act doctrine, the Eleventh Circuit’s expansive interpretation of Murray in VNA sets it in opposition to the D.C. Circuit’s more plaintiff-friendly approach to status quo injunctions derived in Wagner. 181 See supra notes 147–151 and accompanying text (discussing the Wagner approach). Its negative treatment in Klay notwithstanding, VNA remains productive as courts continue to apply its broad interpretation of the heightened Murray standard in the agency action context, both in and out of the Eleventh Circuit, at least in factually similar cases. 182 See, e.g., Faith Home Health Servs. v. Shalala, No. 98-30549, 1998 WL 912171, at *2 (5th Cir. Dec. 15, 1998) (adopting the VNA factors in a factually similar Medicare case); D&G Holdings, LLC v. Burwell, 156 F. Supp. 3d 798, 810–11 (W.D. La. 2016) (finding a plaintiff could not meet the VNA heightened standard and thus failed to merit an All Writs Act injunction); Cameo Care Ctr., Inc. v. Dep’t of Health & Human Servs., No. 96-C-513, 1997 WL 599421, at *3–5 (E.D. Wis. May 31, 1997) (applying the VNA standards and finding that the plaintiff’s claimed financial hardship from adjustment of its Medicare reimbursement schedule was not irreparable injury). Further, even though Alabama suggested that Klay’s abrogation of the four traditional factors for All Writs Act injunctions was misguided, 183 See supra notes 174–177 and accompanying text. the Eleventh Circuit and other courts have continued to cite and apply Klay’s reasoning. 184 See, e.g., Burr & Forman v. Blair, 470 F.3d 1019, 1031 n.32 (11th Cir. 2006) (reiterating the Klay finding on the requirements for an All Writs Act injunction); see also supra note 179 and accompanying text (noting additional cases). The Eleventh Circuit’s All Writs Act doctrine thus remains uncertain, although the VNA approach’s “virtual certainty of irreparable injury” 185 VNA, 711 F.2d 1020, 1034 (11th Cir. 1983); see also supra note 159 and accompanying text (describing the VNA standard). standard for obtaining a status quo injunction pending administrative review is the prevailing rule. There also remains the possibility that a court could follow Klay to find that a party need not make any showing of harm at all to obtain an injunction.

C. Varying Standards for Obtaining All Writs Act Review

Courts across the country have drawn on the major Supreme Court holdings on the All Writs Act, the Wagner and VNA approaches to status quo injunctions, and TRAC’s approach to mandamus when faced with requests for All Writs Act relief against agencies. These cases have produced varying results as to the standards parties must meet to obtain relief. Some decisions have also lacked specificity as to what type of relief is sought and merited. Both of these areas of doctrinal uncertainty raise potential issues. This section highlights three key cases and describes their connection to, or divergence from, the bodies of All Writs Act doctrine discussed in sections II.A and II.B. In the process, it illustrates that clearer standards as to the thresholds for different types of relief are necessary to protect both agency authority and litigants’ access to review.

1. AstraZeneca Pharmaceuticals LP v. Burwell. — A recent case found a troublingly low threshold for All Writs Act–based intervention in ongoing agency proceedings. In AstraZeneca Pharmaceuticals LP v. Burwell, major pharmaceutical manufacturer AstraZeneca moved to temporarily restrain the FDA from approving generic drug manufacturers’ appli-cations to sell versions of Crestor, one of AstraZeneca’s major drugs. 186 197 F. Supp. 3d 53, 54–55 (D.D.C. 2016). The substance of its claim was that any such approval would be premised on a mistaken FDA interpretation of a statute concerning generic-drug labeling. 187 See id. AstraZeneca argued that the FDA could not approve any generic Crestor because: (1) the FDA had granted AstraZeneca an exclusive right to sell Crestor labeled with information about using the drug to treat a rare pediatric disease; (2) FDA regulations require that generic labels include all pediatric information included on the label for the corresponding brand-name drug; and (3) the statutes that authorize the FDA to grant some exceptions to the label-matching rules did not authorize it to make an exception here. See Daniel Siegal, AstraZeneca Loses Bid to Keep FDA OK from Generic Crestor, Law360 (July 19, 2016), []. Thus, AstraZeneca argued, no generic versions of Crestor could be sold at all until AstraZeneca’s exclusivity on the special pediatric disease label expired. See id. The FDA argued that because there was not yet an approval and thus no final agency action, the court lacked jurisdiction over the suit; it also pointed to a statutory provision suggesting preclusion of preexhaustion judicial review. 188 AstraZeneca, 197 F. Supp. 3d at 55. The statute, 21 U.S.C. § 355(q) (2012), bars judicial review of issues raised in a “citizen petition,” an administrative request asking the FDA to take a particular action, before the FDA releases a response. See Michael A. Carrier & Daryl Wander, Citizen Petitions: An Empirical Study, 34 Cardozo L. Rev. 249, 251 (2012) (defining and explaining the use of citizen petitions). AstraZeneca had filed a citizen petition raising the same substantive concerns as its complaint, which remained pending when it filed suit. See AstraZeneca, 197 F. Supp. 3d at 55. AstraZeneca, however, contended that because the generic manufacturers had already manufactured and packaged several months’ worth of generic Crestor to ship immediately upon FDA approval, AstraZeneca would have no opportunity for meaningful judicial review of its statutory challenge before suffering a significant and unrecoverable loss of market share and revenue. 189 AstraZeneca, 197 F. Supp. 3d at 55. In other words, as soon as there was agency action that it could challenge, AstraZeneca would suffer allegedly irreparable harm without opportunity for judicial recourse. 190 Cf. Teva Pharm. USA v. Sebelius, 595 F.3d 1303, 1311 (D.C. Cir. 2010) (noting that the FDA’s procedure for approving generic drug applications can put courts and parties in an “awkward bind,” requiring “more or less instantaneous[]” review of the merits of a statutory challenge to approval).

Although the court in weighing AstraZeneca’s petition recognized both exhaustion and ripeness concerns in addition to the finality issue, 191 AstraZeneca, 197 F. Supp. 3d at 55–56; see also supra section I.A.2 (discussing finality and ripeness). it turned to the All Writs Act, expressing concern that AstraZeneca and similarly situated drug manufacturers lacked an avenue for challenging generic-drug approvals before suffering substantial revenue loss. 192 AstraZeneca, 197 F. Supp. 3d at 56. Citing Dean Foods and Wagner, 193 See supra section II.B.1 (discussing Dean Foods and Wagner). the court found that this was a proper situation in which to preserve its jurisdiction by taking action under the All Writs Act. 194 AstraZeneca, 197 F. Supp. 3d at 58. Based on this authority, the court ordered the FDA not to act on the generic applications or AstraZeneca’s pending citizen petition. 195 See id. at 57–59. For discussion of citizen petitions, see Carrier & Wander, supra note 188, at 251. Instead, it directed the FDA to provide the court confidential notice when it had made its decisions, after which the court would schedule a closed hearing in which the FDA would announce its action and the court would hear the merits of AstraZeneca’s statutory challenge. 196 AstraZeneca, 197 F. Supp. 3d at 57–59. When the hearing took place, the FDA announced approval of the applications, and the court denied the plaintiff’s motion for a temporary restraining order, allowing the generic manufacturers to enter the market. 197 See Transcript of TRO Hearing at 66, AstraZeneca, 197 F. Supp. 3d 53 (No. 16-cv-1336); see also Harris et al., supra note 15 (describing the result).

The AstraZeneca decision is noteworthy not for its ultimate holding rejecting the drug maker’s challenge to the generic approvals 198 The court’s basis for denying the temporary restraining order at the hearing was AstraZeneca’s failure to satisfy the four traditional factors; in particular, the court concluded that its irreparable harm showing was insufficient and that its likelihood of success on the merits was low. See Transcript of TRO Hearing, supra note 197, at 66–75. At this stage, however, the interim relief sought was unrelated to doctrine governing nonfinal agency action, as the FDA had taken final agency action in announcing its decision on the generic-drug applications and the citizen petition. AstraZeneca was thus simply seeking a standard stay of agency action pending judicial review. See supra notes 53–56 and accompanying text (describing the traditional standards and conditions for a stay pending review). but rather for the court’s invocation of the All Writs Act to intervene in incomplete FDA proceedings without applying either of the D.C. Circuit’s frameworks for All Writs Act relief. Indeed, while the court in its order referred to the “irretrievable loss” and “significant injury” AstraZeneca alleged it would suffer without an opportunity to present its statutory arguments, it did not raise the other traditional factors for injunctive relief. 199 AstraZeneca, 197 F. Supp. 3d at 56, 58. In addition, the relief the court granted, ordering the FDA to complete an administrative proceeding in a manner prescribed by the court and under its supervision, had little in common with a status quo injunction. AstraZeneca was not seeking to stay the enforceability of a preliminary FDA decision pending administrative appeal but rather to compel the agency to suspend its licensing procedure entirely, based on a claim of a right to judicial review and a lack of other adequate means to obtain relief. 200 Id. at 54–55. In other words, while neither the parties nor the court raised the topic, the remedy sought and imposed in some ways resembled a writ of mandamus rather than equitable relief. 201 For comparison, the petitioners in TRAC similarly and successfully asked the court to force an agency to complete its ongoing procedure at court direction. See TRAC, 750 F.2d 70, 72, 81 (D.C. Cir. 1984). This suggests that the court might have required not only a showing of irreparable harm per Wagner but also the much higher mandamus standard articulated in TRAC in order to invoke the All Writs Act against the FDA.

Multiple possibilities might account for this outcome. The court could have concluded that this was a case purely in the manner of Dean Foods, in which the Court need not consider the traditional factors in granting interim relief, although the Court there may have made such a consideration implicitly. 202 See supra notes 118–123 and accompanying text. This case is, of course, the reverse of Dean Foods in that it was a regulated entity, rather than an agency, moving for interim relief in the context of nonfinal agency action. The fact that the court also cited Wagner, in which the court had imposed the traditional Virginia Petroleum Jobbers factors after finding it had All Writs Act authority to examine action pending exhaustion of administrative remedies, 203 See supra notes 147–152 and accompanying text (describing Wagner’s application of the four factors). casts some doubt on this interpretation. It is also conceivable, and perhaps most likely, that the court was prepared to reject AstraZeneca’s statutory argument and merely used the All Writs Act to create an opportunity to hear and dismiss the case on the merits rather than on procedural and juris-dictional grounds. Such an approach would be a practical solution to a complex procedural dilemma, if one not necessarily consistent with precedent.

Regardless of the underlying reasoning for the decision, the outcome raises potential concerns. While the court did ultimately reject the claim by applying the standard four factors, 204 See supra note 198. the suit proceeded to that stage only because the court did not raise the factors before requiring the FDA to complete its procedure on the court’s terms. AstraZeneca’s substantive argument for interim relief was ultimately weak, but the court’s initial decision that the drug maker’s procedural claim merited invocation of the All Writs Act invites future parties with stronger substantive arguments to evade the timing doctrines and disrupt agency procedures without a clear showing that such extraordinary relief is justified. The prospect of court-approved party intervention into administrative procedures on the somewhat thin basis of protecting the court’s prospective jurisdiction, without a showing of justification presumably required by doctrine, is a potentially troubling development. Courts should at least require parties seeking court intervention before any agency decision has been announced to make a showing of irreparable harm, if not a “clear and indisputable right” to relief under the mandamus standard, 205 Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81 (2004) (internal quotation marks omitted) (quoting Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 (1976)); see also supra note 91 and accompanying text (discussing the mandamus standard). before granting interim relief under the All Writs Act.

2. Virginia Department of Education v. Riley. — An earlier case combines the role of the All Writs Act as a mechanism to set aside the final agency action requirement for judicial review with its use as a vehicle to issue status quo injunctions pending administrative appeals. It also demonstrates the ambiguities that can exist in the forms of relief parties can seek and courts can impose against agencies. In Virginia Department of Education v. Riley, the Fourth Circuit found authority under the All Writs Act to enjoin the U.S. Department of Education (USDOE) from withholding Virginia’s $50 million federal grant for education of disabled children for the 1994 fiscal year, as well as to require the federal agency to allow an administrative appeal before also withholding the State’s 1995 funds. 206 23 F.3d 80, 82–84 (4th Cir. 1994). To be clear as to the funding scheme at issue, Virginia received USDOE funds on the basis of a three-year plan running from 1993 to 1995 with portions of the grant disbursed annually; USDOE had conditionally approved the plan in 1992. Id. at 82–83. USDOE then notified Virginia just months before the beginning of the 1994 school year that it now disapproved and thus proposed to withhold the funds going forward. Id. Virginia had sought relief after USDOE notified the State that it intended to withhold its 1994 grant unless the State changed its policy on discipline of children with disabilities; 207 Id. at 82–83. Virginia’s regulations stated that school authorities could discipline disabled children identically to nondisabled children if their misconduct was not causally related to their disability; USDOE interpreted the governing federal statute to prohibit schools from suspending disabled students even for behavior unrelated to their disability. See id. the Department refused to release any of the 1994 funds pending an administrative appeal, arguing it lacked statutory authority to do so. 208 Id. at 83. In its petition for review, Virginia argued that withholding the 1994 funds without first providing an administrative appeal in fact violated the governing statute and left the State with the unfair choice to either change its policy or forgo the grant and suffer irreparable harm. 209 Id. at 84. The State presented testimony from State officials and school districts that denial of the 1994 funds would force imminent layoffs of teachers, aides, social workers, and other vital employees of the state’s school systems and force statewide and local authorities to completely rewrite budgets they had prepared in reliance on the federal funds. See id. at 84–85.

Virginia in essence requested two types of relief from the court. First, it sought All Writs Act–based relief staying the USDOE decision to withhold the 1994 grant pending the State’s administrative appeal—in practical terms, to require USDOE to release the 1994 funds im-mediately. 210 Id. at 83–84. Stated more precisely, Virginia invoked the All Writs Act to obtain a stay of the Agency’s initial decision while the State appealed, which because of the timing of the initial decision would result in release of the 1994 funds and a subsequent hearing to review the withholding of the 1995 funds. Id. Thus, Virginia sought an All Writs Act status quo injunction to suspend the enforceability of an initial agency decision pending an administrative appeal, with the added dispute over whether the agency had statutory authority to provide such a hearing. Second, it asked the court to review the governing statute and find that the State was entitled to such an appeal before USDOE could also withhold the 1995 funds. 211 See id. at 84. The court found for the State in both areas. First, it concluded that the case was one of the “rare instances [in which] an appellate court may act under the authority of the All Writs Act in granting interlocutory relief to a party aggrieved by administrative actions when the court would have full appellate jurisdiction following a final agency decision.” 212 Id. at 83–84. Notably, the court looked to neither Dean Foods nor the traditional injunction factors for this finding but rather to TRAC and other cases describing the standards for writs of mandamus requested in advance of any agency decision. 213 See id. (citing TRAC, 750 F.2d 70, 75 (D.C. Cir. 1984)). Deriving and applying a standard requiring a likelihood of irreparable harm and the absence of adequate remedies in ongoing administrative proceedings, 214 The irreparable harm standard here is distinct from the similar traditional injunction factor and derives in part from a 1985 decision by then-Judge Anthony Kennedy about the general threshold for All Writs Act relief from nonfinal agency action, parallel to the standard from TRAC. See id. at 84 (citing Pub. Util. Comm’r v. Bonneville Power Admin., 767 F.2d 622, 630 (9th Cir. 1985)). the court found that the circumstances merited All Writs Act–based review. 215 Id. It next concluded that the USDOE procedure provided no opportunity for meaningful review of the Department’s initial decision before the State’s loss of the $50 million grant and the resultant irreparable harm to its budget and school system. 216 Id. Finally, having thus found jurisdiction to review the Department’s statutory interpretation, the court concluded that USDOE’s interpretation was indeed erroneous and that the State was entitled to an administrative appeal. 217 See id. at 85–87. The court thus imposed an “injunction” prohibiting USDOE from withholding the 1994 funds and requiring a hearing before withholding the following year’s grant. 218 Id. For additional background on the dispute in the case and developments following the All Writs Act decision, see 2 Pierce, supra note 26, § 15.11, at 1333–34.

Riley demonstrates two noteworthy features of All Writs Act jurisprudence. First, it serves as an additional example of the Act’s use as a means to issue status quo injunctions and to push agencies to limit the negative impact of their preliminary decisions while affected parties pursue administrative remedies. Indeed, the case is regarded with Dean Foods as an example of court authority to issue injunctions under the All Writs Act. 219 See 16 Wright et al., supra note 4, § 3932.2 n.8. That the court relied not on Dean Foods or the traditional injunction factors in its analysis, however, but rather on cases concerning All Writs Act–based mandamus, 220 See supra note 213 and accompanying text. illustrates again the ambiguity that exists in All Writs Act doctrine as to the forms of relief that are available and the standards for obtaining it. Because the court found that the State had amply met the mandamus-level threshold it had set, 221 See supra notes 214–216 and accompanying text. the court’s choice to apply such a standard was likely inconsequential here. There is a concern, however, that placing the bar for a status quo injunction at the high mandamus level could risk the rejection of relief to plaintiffs seeking injunctions in the future. Greater clarity among the forms of relief available under the Act will help to alleviate this potential issue.

3. Colorado v. United States. — A final case illustrates the risks to “worthy claimants” 222 Wagner v. Taylor, 836 F.2d 566, 572 (D.C. Cir. 1987). from applying the unnecessarily stringent VNA approach to status quo injunctions against agencies, 223 See supra notes 158–165 and accompanying text (discussing the VNA approach). as well as from the general lack of clarity in All Writs Act doctrine. In Colorado v. United States, the state of Colorado filed suit against the U.S. Air Force alleging that it violated a government contracting law that requires a preference for blind bidders by awarding a contract for a dining facility to a competitor of the incumbent blind vendor. 224 813 F. Supp. 2d 1230, 1233 (D. Colo. 2011). The law in question was the Randolph-Sheppard Act, 20 U.S.C. §§ 107–107f (2006). While the plaintiff pursued administrative remedies (an arbitration proceeding), it filed for status quo injunctive relief under the All Writs Act to stay the contract award, arguing that the incumbent’s business would fail without court action, constituting irreparable harm. 225 Colorado v. United States, 813 F. Supp. 2d at 1233–36. Rather than apply the traditional four factors under the Wagner approach, the court instead looked to VNA. 226 Id. at 1234–35. In considering VNA’s two-pronged test to determine whether a heightened showing on the four traditional factors is necessary, the court concluded that the test applies to all requests for status quo injunctions to stay nonfinal agency action, not merely those cases in which statutory provisions or common law principles limit preexhaustion review as in Murray and VNA. 227 Id. Applying this strict test, the court found that a heightened showing was required and that Colorado had failed to show the “virtual certainty” of irreparable harm necessary for relief under the VNA approach. 228 See id. at 1235–36 (citing VNA, 711 F.2d 1020, 1034 (11th Cir. 1983)).

The court premised its extension of the VNA test to all requests for All Writs Act status quo injunctions on a mistaken reading of a distinguishable body of Supreme Court doctrine. While the court acknowledged Dean Foods as the basis of its jurisdiction to grant All Writs Act relief, it concluded that the Supreme Court had since “retreated” from that case’s “expansive view” of the All Writs Act. 229 Id. at 1234. In Wisconsin Right to Life, Inc. v. FEC, the Colorado court noted, Chief Justice Rehnquist, sitting as Circuit Justice, had held that that the All Writs Act must be used “sparingly and only in the most critical and exigent circumstances.” 230 Id. at 1235 (internal quotation marks omitted) (quoting Wis. Right to Life, Inc. v. FEC, 542 U.S. 1305, 1306 (Rehnquist, Circuit Justice 2004)). The cases the Chief Justice had cited for this prop-osition, however, make clear that it referred only to injunctions requested from a Circuit Justice, not any request for an All Writs Act injunction. 231 See Wis. Right to Life, 542 U.S. at 1306. The cases from which the strict language on the All Writs Act derives strongly support this interpretation. The Chief Justice in Wisconsin Right to Life was quoting Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Commission, in which Justice Scalia as Circuit Justice declined to issue a requested injunction to stay the operation of a power plant pending judicial review of NRC action. Id. (citing 479 U.S. 1312, 1313 (Scalia, Circuit Justice 1986)). In addition to noting the statutory issues the petitioners faced in the case, Justice Scalia explained that the All Writs Act was the only basis for such an injunction and that it is “[t]he Circuit Justice’s injunctive power [that] is to be used ‘sparingly and only in the most critical and exigent circumstances.’” Ohio Citizens for Responsible Energy, 479 U.S. at 1313 (emphasis added) (quoting Fishman v. Schaeffer, 429 U.S. 1325, 1326 (Marshall, Circuit Justice 1976)). The language originally derived from an opinion by Justice Stewart, as Circuit Justice, that did not relate to the All Writs Act, further clarifying that the statement in Wisconsin Right to Life was a point of doctrine about the authority of Circuit Justices, not a statement applying to any All Writs Act–based injunction. See Williams v. Rhodes, 89 S. Ct. 1, 2 (Stewart, Circuit Justice 1968). Nonetheless, proceeding on this interpretation, the Colorado court found that it had to evaluate all All Writs Act injunction requests under the VNA test, 232 Colorado v. United States, 813 F. Supp. 2d at 1235. Notably, a recent case involving a similar factual claim under the Randolph-Sheppard Act discussed Colorado and specifically rejected this conclusion. See Kansas v. United States, 192 F. Supp. 3d 1184, 1213 (D. Kan. 2016). dramatically increasing the chances of the blind dining facility operator losing his livelihood because of an allegedly unlawful agency decision. While the administrative appeal concluded that the Air Force had in fact acted improperly, 233 See Colo. Dep’t of Human Servs. v. U.S. Dep’t of Defense, No. R-S/10-06, at 15–16 (May 30, 2012) (Snider, Arb.), []. the case illustrates the risks to worthy claimants of an unnecessarily high threshold for All Writs Act injunctive relief and the generally unclear doctrine surrounding the Act’s use. 234 The Colorado court did find that the plaintiff would not have merited an injunction even under the normal irreparable harm standard, based on VNA’s holding that bankruptcy does not meet the threshold. Colorado v. United States, 813 F. Supp. 2d at 1236–37 (citing VNA, 711 F.2d 1020, 1034 (1983)). That holding, however, is arguably based on the same questionable reading of Murray that led the VNA court to find that a heightened showing is required for all four traditional factors. See supra notes 159–166 and accompanying text (discussing VNA’s interpretation of Murray); cf. Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (identifying a threat to the existence of the movant’s business as irreparable harm).

III. Maintaining Deference to Agencies and Fairness to Litigants

Review of the differing standards parties must meet to obtain All Writs Act relief against agencies yields two sets of implications. This Part describes each and recommends that courts apply standards that promote the twin goals of appropriate deference to agencies and fairness to litigants. Section III.A advocates that courts maintain a high threshold to obtain writs of mandamus. It also recommends precision in identifying the type of relief sought and imposed in such cases to help preserve a high bar to judicial intervention before the agency has made even an initial determination. Section III.B recommends protecting fairness to litigants by rejecting the doctrine that would require parties seeking status quo injunctions pending administrative appeals to make a heightened showing on the traditional injunction factors. Finally, section III.C links these proposals with contemporary debates over the administrative state’s legitimacy and role. Overall, this Part argues that parties invoking the All Writs Act to avoid harm from administrative action or inaction should present sufficient justification for relief but should not be overly burdened by unnecessarily restrictive standards.

A. Maintaining the High Bar for Writs of Mandamus

Courts have long maintained that obtaining judicial review of ongoing agency proceedings, before the agency has made any decision in a matter, requires an extraordinary showing of need. 235 See, e.g., TRAC, 750 F.2d 70, 79 (D.C. Cir. 1984); Gulf Oil Corp. v. U.S. Dep’t of Energy, 663 F.2d 296, 312 (D.C. Cir. 1981); see also supra section II.B.1 (discussing TRAC). While the Supreme Court established the three-pronged All Writs Act mandamus test in Cheney, 236 Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81 (2004); see also supra note 91 and accompanying text (discussing Cheney). and lower courts have articulated the standard in varying language (including the Ninth Circuit in an opinion by then-Judge Anthony Kennedy), 237 Then-Judge Kennedy held in a case seeking All Writs Act mandamus to halt an ongoing rulemaking proceeding that “circumstances that will justify [appellate court] interference with nonfinal agency action must be truly extraordinary,” requiring an irreparable injury not correctable on normal review of final action. See Pub. Util. Comm’r v. Bonneville Power Admin., 767 F.2d 622, 630 (9th Cir. 1985) (noting also that use of the All Writs Act to issue writs of mandamus to agencies is even rarer than writs to review nonfinal district court orders); see also George Kabeller, Inc. v. Busey, 999 F.2d 1417, 1421–23 (11th Cir. 1993) (agreeing with and applying Public Utility Commissioner and TRAC to deny a writ of mandamus against the Federal Aviation Administration). all variations set a high threshold. As the Ninth Circuit has explained, intervention in ongoing agency proceedings risks the court engaging in “premature, possibly unnecessary, and piecemeal judicial review,” not to mention disruption of the administrative process and delay of the ultimate resolution of the proceedings. 238 Pub. Util. Comm’r, 767 F.2d at 629–30; see also FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 242 (1980) (explaining the risks of premature judicial review of agency action—namely, “interference with the proper functioning” of agencies); cf. In re Murray Energy Corp., 788 F.3d 330, 335 (D.C. Cir. 2015) (“[T]he All Writs Act does not authorize a court to circumvent bedrock finality principles in order to review proposed agency rules.”). Courts should thus remain cautious and err on the side of deferring to agencies while their procedures are ongoing and no decisions have been made, carefully evaluating requests for writs of mandamus to ensure that parties are not able to use premature requests for judicial review to obstruct and impede agency action that may be unfavorable to the party but within the agency’s authority and public interest mission. 239 Cf. Norton v. S. Utah Wilderness All., 542 U.S. 55, 66 (2004) (“The principal purpose . . . of the traditional limitations upon mandamus . . . is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.”).

Although the Supreme Court narrowed the scope of the exhaustion doctrine in Darby v. Cisneros, 240 509 U.S. 137, 154 (1993); see also supra note 46 and accompanying text (describing Darby’s conclusion that parties must exhaust administrative remedies before seeking judicial review under the APA only when required by statute or agency rule). the separation of powers principle underlying the Court’s jurisprudence on the subject provides an additional, structural basis for maintaining the high threshold for court intervention before an agency has made even a preliminary decision. One of the major purposes for the traditional exhaustion requirement, the Court has explained, is “protecting administrative agency au-thority.” 241 McCarthy v. Madigan, 503 U.S. 140, 145 (1992). The other major purpose is promoting judicial efficiency; the doctrine allows agencies to resolve disputes without bringing them to court and helps to build a more thorough record should judicial review become necessary. Id. This concept is “grounded in deference to Congress’ delegation of authority to coordinate branches of Government” 242 Id. and recognizes that “agencies, not the courts, ought to have primary responsibility for the programs Congress has charged them to administer.” 243 Id. In other words, the doctrine is “an expression of executive and administrative autonomy.” 244 McKart v. United States, 395 U.S. 185, 194 (1969) (internal quotation marks omitted) (quoting Louis L. Jaffe, Judicial Control of Administrative Action 425 (1965)). When a court issues a writ of mandamus before an agency has acted on the matter at issue, it does so despite the fundamental structural concerns such judicial intervention in executive action raises. The standard for obtaining such a forceful directive should accordingly remain stringent.

Courts should also ensure that petitions that in form seek temporary equitable remedies—and the lower bar for All Writs Act intervention available for such measures—are not in substance requests for mandamus-type relief to compel more significant action from an agency. While mislabeling a court’s directive may not always be consequential for the case at issue, 245 See supra section II.C.2 (describing ambiguity in the form of relief ordered by the Fourth Circuit in Virginia Department of Education v. Riley, 23 F.3d 80 (4th Cir. 1994)). it does present two potential concerns. First, a lack of doctrinal clarity could allow parties actually seeking a fundamental change or disruption of agency procedure to disguise their proposed remedy as a more limited form of relief, which if accepted by courts could lead to unmerited intrusion into agency proceedings. 246 This is arguably what took place in AstraZeneca Pharmaceuticals LP v. Burwell. 197 F. Supp. 3d 53, 57–59 (D.D.C. 2016); see also supra section II.C.1. Without directly discussing any of the applicable standards for All Writs Act relief, the court ordered the FDA to conduct its procedure for generic-drug approval under court supervision. See AstraZeneca, 197 F. Supp. 3d at 57–59. This outcome would have been much less likely had the plaintiff framed its request for relief as a petition for a writ of mandamus rather than a motion for a temporary equitable remedy. Second, general ambiguity in the form of action sought and ordered could also unnecessarily and unfairly elevate the bar for plaintiffs actually seeking the less disruptive form of relief. 247 Cf. Colorado v. United States, 813 F. Supp. 2d 1230, 1234–35 (D. Colo. 2011) (illustrating the unnecessarily high barriers to relief that may result due to lack of clarity in All Writs Act doctrine); see also supra section II.C.3 (discussing the Colorado case). When parties request multiple or vague forms of relief, courts should not hesitate to use their discretionary authority under the All Writs Act to impose the threshold that matches the relief the party is effectively seeking. 248 See Air Line Pilots Ass’n Int’l v. Dep’t of Transp., 880 F.2d 491, 503 (D.C. Cir. 1989) (declaring the petitioner’s request for an injunction to be “more accurately characterized as a writ of mandamus”); In re GTE Serv. Corp., 762 F.2d 1024, 1025–27 (D.C. Cir. 1985) (explaining the court’s authority and decision to treat an ambiguous pleading for All Writs Act relief as a request for a writ of mandamus). These measures would help to maintain an appropriately high threshold for access to judicial relief more sweeping than stays of decisions pending administrative appeal, as well as encourage doctrinal clarity.

B. Ensuring Fair Access to Status Quo Injunctions

Although courts should maintain a high standard for mandamus intervention in nonfinal agency action, they should not impose more burdensome requirements for an All Writs Act status quo injunction than are required for a standard preliminary injunction. 249 See supra section I.A.3 (describing the traditional Virginia Petroleum Jobbers standard for injunctive relief and its use by the Supreme Court and courts generally). To be sure, Murray established that parties invoking the Act to suspend certain federal employment decisions must make a higher showing of irreparable harm than is required for a traditional motion for interim relief. 250 Sampson v. Murray, 415 U.S. 61, 84 (1974). This basic conclusion by the Court is deservedly subject to the criticism expressed in the dissent, but the majority opinion is not questioned for its precedential value. See supra note 132. Notably, however, the D.C. Circuit has suggested that subsequent decisions may have “in large part mooted” the question of the Murray standard’s applicability to other contexts by reinterpreting the statutory scheme at issue in the case. See Taylor v. Resolution Tr. Corp., 56 F.3d 1497, 1505 n.1 (D.C. Cir. 1995). Yet decisions that stretch this narrow, context-specific holding to each of the four injunction factors in all cases with doctrinal or statutory impediments to preexhaustion judicial review 251 See VNA, 711 F.2d 1020, 1030 (11th Cir. 1983) (concluding that Murray requires heightened showings on all four traditional injunction factors whenever agency statutes preclude judicial review before parties exhaust administrative remedies); see also supra notes 159–160 and accompanying text (discussing the VNA standard). —and even more strikingly to any motion for an All Writs Act status quo injunction 252 See Colorado v. United States, 813 F. Supp. 2d at 1234–35; see also supra section II.C.3 (describing the doctrine derived in the case). —are misguided on both practical and doctrinal grounds. Cases in which parties seek such relief arise relatively infrequently, but to the extent that they grow in prom-inence due to shifts in agency behavior or other changed circumstances, courts should take care to note key points of doctrinal development and keep in mind certain guiding principles.

First, Murray established by implication that the four traditional factors are appropriate for weighing All Writs Act motions for status quo injunctions. 253 See supra note 135 and accompanying text (describing Murray’s implications and the traditional injunction factors). Courts should not discard the traditional standards based on the Murray outcome, especially because the Supreme Court made substantially clear that the case’s heightened standard applied only to the specific context of civil service personnel disputes. 254 See supra notes 131–134 (describing the Court’s limitation of the Murray holding’s scope). The VNA court’s elevation of the showing parties must make to obtain interim relief results from an unwarranted extension and extrapolation of this holding. Even if the VNA court’s motivation for imposing heightened standards was deference to agencies, the result in VNA and cases that have relied on it has been denial of interim relief to ostensibly “worthy claimants” 255 Wagner v. Taylor, 836 F.2d 566, 572 (D.C. Cir. 1987). whose businesses would cease to exist without court intervention, constituting definitional irreparable harm. 256 VNA, 711 F.2d at 1031 n.26 (acknowledging the plaintiff’s allegation that it will be forced to enter bankruptcy without interim relief); Colorado v. United States, 813 F. Supp. 2d at 1236 (same); see also supra note 182 (listing additional cases relying on VNA to withhold All Writs Act relief). Given the APA’s presumption of judicial review for parties aggrieved by agency action, 257 5 U.S.C. § 702 (2012) (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”). courts should endeavor to avoid this unfair and unwarranted departure from traditional standards of equitable relief with such serious and irreversible consequences.

The text and function of the All Writs Act itself further reveal the error of the VNA approach. The statute states that federal courts may issue “all writs necessary or appropriate in aid of their respective jurisdictions.” 258 28 U.S.C. § 1651(a) (2012) (emphasis added). In Dean Foods, the Court explained that judicial exercise of All Writs Act power is “in the nature of appellate jurisdiction” and that a writ is “in aid of” that jurisdiction when it might otherwise be “defeated.” 259 FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966) (internal quotation marks omitted) (quoting McClellan v. Carland, 217 U.S. 268, 280 (1910)). The Court thus found that the Act enabled it to halt a merger in order to allow the FTC to determine the merger’s legality, which in turn protected the Court’s appellate jurisdiction over the eventual FTC order. 260 Id. at 606–12; see also supra notes 115–116 and accompanying text (discussing the Court’s holding and reasoning in Dean Foods). As the Court explained in Murray, refusing to grant the injunction would have resulted in “the practical disappearance” 261 Sampson v. Murray, 415 U.S. 61, 77 (1974). of one of the merger parties. In VNA, however, the court concluded that the plaintiff Medicare provider’s bankruptcy during its administrative appeal would not sufficiently defeat the court’s jurisdiction to merit All Writs Act relief, a finding influenced by the court’s strict reading of Murray. 262 VNA, 711 F.2d 1020, 1031 (11th Cir. 1983). The dissent explained the failure of this analysis, observing that without an injunction, “review by the administrative board as well as the court will become virtually meaningless,” 263 Id. at 1036. (Godbold, C.J., dissenting). As the dissent noted, “A court has no power to breathe life into the corpse of a [regulated entity] that is out of business and bankrupt.” Id. and thus the court’s jurisdiction “will be effectively defeated within the meaning of Dean Foods and Murray.” 264 Id. As the dissent demonstrates, a standard for status quo injunctive relief that requires harm greater than the practical disappearance of the regulated entity is more likely to harm courts’ jurisdiction than to serve in aid of it. Such a standard is thus at odds with the core purpose of the All Writs Act.

Courts similarly should not abandon all requirements for injunctive relief by embracing the Klay approach to All Writs Act injunctions for the agency context, 265 See supra notes 168–173 and accompanying text (describing Klay’s All Writs Act doctrine). nor should they treat Dean Foods as a vehicle to intervene in administrative action without requiring any showing under the traditional factors. Judicial oversight of agency action, even if only to suspend an order pending administrative appeals, is an intrusive intervention into ongoing proceedings. Indeed, “a court interferes just as much when it orders the status quo preserved as when it changes it.” 266 John Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L. Rev. 525, 546 (1978). An injunction remains “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 267 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). Before imposing an injunction against an agency under the All Writs Act, courts should continue to require that parties make a compelling showing under the traditional factors that they merit temporary equitable relief.

C. The All Writs Act and Challenges to the Administrative State

In an era of ongoing challenges to the legitimacy of the administrative state, 268 See Kessler, supra note 18, at 720–23. proper understanding of mechanisms that can restrict the power and authority of agencies grows increasingly important. For those who support a robust administrative state with an appropriate degree of agency autonomy, 269 See supra note 19 and accompanying text (noting the concept of bureaucratic autonomy). clarifying doctrine that allows regulated entities to obtain judicial intervention in ongoing agency activity is a project worth pursuing. While All Writs Act–based challenges to agency action remain infrequent, deregulatory attacks on the administrative state using the Act are conceivable. One potential tactic is halting administrative action by filing repeated petitions for mandamus that allege bias among agency decisionmakers. 270 Courts have weighed writs of mandamus on the basis of such allegations in the past. See, e.g., Pub. Util. Comm’r v. Bonneville Power Admin., 767 F.2d 622, 624 (9th Cir. 1985); Ass’n of Nat’l Advertisers v. FTC, 627 F.2d 1151, 1155–56 (D.C. Cir. 1979). Bias assertions would be consistent with rhetoric charging the so-called “Deep State,” including administrative agency officials, with prejudice against certain political views. See Rebecca Ingber, The “Deep State” Myth and the Real Executive Branch Bureaucracy, Lawfare (June 14, 2017), [] (describing the “Deep State”). While such suits are unlikely to succeed without compelling evidence, a sufficient volume of litigation could nonetheless raise significant impediments to agency activity. Another risk is that parties will attempt to expand the holding against the FDA in AstraZeneca v. Burwell and persuade courts to force other agencies to conduct their procedures under court supervision without requiring the plaintiff to satisfy the standards for either form of All Writs Act relief. 271 See supra section II.C.I (discussing the case and its unusual outcome in detail). In light of these concerns, ensuring that doctrine governing the Act’s use against agencies clearly and properly reflects foundational precedents and principles of deference alike is a valuable endeavor.

At the same time, the All Writs Act serves as a tool “for the administration of justice.” 272 Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 9–10 & n.4 (1942). Given the “Constitution in Exile” movement’s goal to restrict and limit administrative activity, 273 See supra text accompanying note 20 (describing the movement). one manifestation of this mission could be the elimination of procedural protections for the subjects of agency action, including by denying stays of adverse decisions pending administrative appeals. When agencies refuse to accommodate the interests of “worthy claimants” 274 Wagner v. Taylor, 836 F.2d 566, 572 (D.C. Cir. 1987). while the administrative process progresses, the All Writs Act should remain a means to administer justice on an interim basis with a sufficient showing on the four traditional factors for relief. Another possible impact of the movement’s proponents gaining influence is an increased likelihood of extensive delays or withholding of agency decisions—the type of inaction that the D.C. Circuit in TRAC held could be challenged with a petition for a writ of mandamus under the All Writs Act. 275 750 F.2d 70, 75–77 (D.C. Cir. 1984) (“Because the statutory obligation of a Court of Appeals to review on the merits may be defeated by an agency that fails to resolve disputes, a Circuit Court may resolve claims of unreasonable delay in order to protect its future jurisdiction.”); see also supra notes 139–144 and accompanying text. While the threshold for mandamus is and should remain high, regulatory beneficiaries in particular may take note of All Writs Act–based avenues to encourage and compel agency action when its delay or absence is harmful to the public interest.


The All Writs Act allows courts to entertain requests for intervention in ongoing administrative action, both to require agencies to act at court direction with writs of mandamus and to suspend the enforceability of initial agency decisions with injunctions pending completion of administrative remedies. The APA’s presumption of judicial review dictates that parties should have access to the courts to challenge agency action when it causes them substantial hardship. Doctrine governing All Writs Act–based review provides deserving parties a powerful vehicle to seek relief by authorizing courts to invoke the Act against agencies in aid of the courts’ prospective jurisdiction. Courts should not, however, threaten agency authority by too readily using the All Writs Act to intervene in ongoing agency action. At the same time, they should not unnecessarily raise the threshold for status quo injunctive relief for parties that can make clear that they will suffer irreparable harm without it. In an era of an uncertainty for the future of the administrative state, appropriate standards for All Writs Act relief will help to both protect agencies’ authority to serve the public interest and preserve access to the courts for parties that deserve it.