The 2d Circuit goes with the J. Kagan approach to determining the appropriate remedy under Collins (I added bold):
"In the wake of Seila Law and Collins, courts have disagreed as to how one
could make such a showing. One view is that Collins requires a party to “show
that the agency action would not have been taken but for the President’s inability
to remove the agency head.” CFPB v. Nat'l Collegiate Master Student Loan Tr., 575
F. Supp. 3d 505, 508 (D. Del. 2021) (emphasis added); see also Calcutt, 37 F.4th at 316
(“To invalidate an agency action due to a removal violation, that constitutional
infirmity must cause harm to the challenging party” (emphasis added) (internal
quotation marks omitted)); CashCall, 35 F.4th at 742 (“[T]he party challenging an
agency’s past actions must . . . show how the unconstitutional removal provision
actually harmed the party.” (internal quotation marks omitted)). A less demanding
view is that Collins merely requires a party to show that “the President’s inability
to fire an agency head affected the complained-of decision.” CFPB v. RD Legal
Funding, LLC, 592 F. Supp. 3d 258, 266 (S.D.N.Y. 2022) (emphasis added) (internal
quotation marks omitted). According to this view, Collins requires only some nexus
between the existence of the unlawful removal provision and the complained-of
enforcement action. Unfortunately, the Collins majority opinion did not
pronounce a definitive holding on this point. See Collins, 141 S. Ct. at 1788–89. But Justice Kagan, writing for herself, Justice Breyer, and Justice Sotomayor, did
provide some helpful guidance.
Specifically, Justice Kagan “join[ed] in full the majority’s discussion of the
proper remedy” in Collins and, in so doing, suggested that a party seeking to void
an agency action must first show but-for causation linking an unconstitutional
removal protection to the complained-of agency action. Id. at 1801 (Kagan, J.,
concurring). According to Justice Kagan, an agency action should be undone only
when voiding the agency’s action is “needed to restore the [complaining party] to
the position [it] ‘would have occupied in the absence’ of the removal problem.”
Id. (Kagan, J., concurring) (quoting Milliken v. Bradley, 433 U.S. 267, 280 (1977)).
Justice Kagan explained that “[g]ranting relief in any other case would, contrary
to usual remedial principles, put the [complaining party] ‘in a better position’ than
if no constitutional violation had occurred.” Id. (Kagan, J., concurring) (quoting
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285 (1977)).
We find Justice Kagan’s logic to be persuasive. Requiring but-for causation
in these cases properly matches the constitutional injury to the requested remedy.
See id. at 1789 (Thomas, J., concurring) (“[T]o the extent a [g]overnment action
violates the Constitution, the remedy should fit the injury.”). Such a requirement is also consistent with long-established remedial principles articulated by the
Supreme Court and our own precedents, see Mt. Healthy, 429 U.S. at 285–87; Swann
v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) (“[T]he nature of the
[constitutional] violation determines the scope of the remedy.”); United States v.
City of Yonkers, 197 F.3d 41, 55 (2d Cir. 1999) (“[T]he nature of the . . . remedy is to
be determined by the nature and scope of the constitutional violation.” (quoting
Milliken, 418 U.S. at 746)). We therefore hold that to void an agency action due to
an unconstitutional removal protection, a party must show that the agency action
would not have been taken but for the President’s inability to remove the agency
head.
In this case, there is no dispute that the CFPB Director who issued the CID
was properly appointed."
