Cluster 361171

Inst., 587 F.2d at 1290 (“Post-hoc rationalizations by the agency on remand are no more permissible than are such arguments when raised by appellate counsel during judicial review.”). 7 In sum, although none of the Nielsen Memo’s rationales for DACA’s rescission relate back perfectly to the Duke Memo’s, only one—the messaging rationale—is so attenuated as to comprise “a new reason for why the agency could have” rescinded DACA.

Inst. , 587 F.2d at 1290 (" Post-hoc rationalizations by the agency on remand are no more permissible than are such arguments when raised by appellate counsel during judicial review."). 7 In sum, although none of the Nielsen Memo's rationales for DACA's rescission relate back perfectly to the Duke Memo's, only one-the messaging rationale-is so attenuated as to comprise "a new reason for why the agency could have" rescinded DACA.

Inst. v. Interstate Commerce Comm'n , 587 F.2d 1285 , 1290 (D.C.

Inst., 587 F.2d at 1290.

Cir. 1978), the court had remanded a decision after identifying a material error in the agency's reasoning, in particular an "inference [that] was not supported by the evidence,” Id. at 1288.

That decision’s warning against “[p]ost-hoc rationalizations by the agency on remand,” id. at 1290, occurred after the court already had concluded that the agency’s position was “defective” — not just insufficiently explained, as in Delta I — and the court therefore had “vacated” the decision — in contrast to remand without vaca-tur in Delta I.

That decision’s warning against “[p]ost-hoc rationalizations by the agency on remand,” id. at 1290, occurred after the court already had concluded that the agency’s position was “defective” — not just insufficiently explained, as in Delta I — and the court therefore had “vacated” • the decision — in contrast to remand without vaca-tur in Delta I.

Inst. v. ICC, 587 F.2d 1285, 1289-90 (D.C.Cir.1978); see also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971).

Food Marketing Institute, 587 F.2d at 1290; see also Burlington Truck Dines, Inc. v. United States, 371 U.S. 156, 168 , 83 S.Ct. 239, 245 , 9 L.Ed.2d 207 (1962); Appeal of Bolden, 848 F.2d 201, 207 (D.C.Cir.1988); accord Motor Vehicle Manufacturers Assoc. v. State Farm Mutual, 463 U.S. *311 29, 50, 103 S.Ct. 2856, 2870 , 77 L.Ed.2d 443 (1983).

In that case the court held that it must apply "a somewhat greater degree of scrutiny than might otherwise be appropriate” to an agency order which "reaffirmed a decision that itself departed drastically from [an earlier order in the same case].’’ Id. at 392-393, 587 F.2d at 1289-1290.

V. of New York v. FCC, 652 F.2d 1140, 1149 (2d Cir. 1981); NRDC, 606 F.2d at 1052 ; Food Marketing Institute, 587 F.2d at 1293-94.

V. of New York v. FCC, 652 F.2d 1140, 1149 (2d Cir. 1981); NRDC, 606 F.2d at 1052 ; Food Marketing Institute, 587 F.2d at 1293-94.

Sections 17(7) and 16(6) of the Act are cited in support of this assertion. 16 Brief for Respondent ICC at 33-34.

See Food Marketing Inst. v. ICC, 587 F.2d 1285 , 1290 (D.C.Cir.1978) (“The agency’s action on remand must be more than a barren exercise of supplying reasons to support a pre-ordained result.”).