Here's a fun cert petition from the SG filed yesterday (docket):

This case presents the important question whether federal courts have the authority to universally vacate agency rules under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 5 U.S.C. 701 et seq. Under that statute, reviewing courts are directed that they “shall” “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious,” or “otherwise not in accordance with law.” 5 U.S.C. 706(2)(A). The question is whether the authority to “set aside” agency actions allows federal courts to vacate agency rules as to everyone, including non-parties, and, if so, in what circumstances.

The answer is that the APA does not authorize such sweeping relief. Even if the APA authorized universal vacatur in some circumstances, universal vacatur would certainly not be an appropriate “default” remedy.

This Court should return the lower courts to their proper role under the APA. To “set aside” unlawful agency action in the course of judicial review is not to “nullify” it; it is a rule of decision that does not displace the traditional remedial limits on federal courts. Texas, 599 U.S. at 695 (Gorsuch, J., concurring in the judgment). This case presents a good vehicle to make that clear. The en banc court identified no reason why universal relief was necessary to redress the parties’ injuries, and its summary refusal to revisit its own precedent in light of CASA confirms that only this Court can resolve the propriety of universal vacatur. This Court should grant the petition for a writ of certiorari.

Some of this is clearly riffing of a Gorsuch / Thomas / Barrett concurrence from 2023. But... Kavanaugh also filed a solo concurring opinion in 2024 where he was very clear what he thought of the argument being made:

The Government’s position would revolutionize longsettled administrative law—shutting the door on entire classes of everyday administrative law cases. The Government’s newly minted position is both novel and wrong. It “disregards a lot of history and a lot of law.” M. Sohoni, The Past and Future of Universal Vacatur, 133 Yale L. J. 2305, 2311 (2024).

We'll see whether we get a cert grant or not, but I honestly don't see how the government plans to count to 5 -- I can't see Roberts joining Gorsuch / Barrett / Thomas on this one.