Loper Bright & Corner Post: What a Time in Admin. Law
It has been 108 days since the Supreme Court issued Loper Bright, finally relishing their chance to say, "No one puts baby in a corner." (Am I allowed to say that?)
Cool beans. Goodbye to Chevron.
Disdain for Chevron's principles has been apparent in Supreme Court dissents for as long as I can remember. [i]? According to the new majority in Loper, Chevron’s deference was never meant to be a functional agency shield from judicial disruption.[ii] ?The Courts were always supposed to have a say.? For decades, you could wager finding words of contempt for the inability to "get at" agency decisions arguably within the realm of an agency's statutory mandate, in dissents from cases challenging agency action. ?Cool beans. My thoughts on the official end of Chevron range from "duh" to "then be big government and spend the money."[iii]?
If you're wondering what the connection is between a Supreme Court ultimately saying the body is permitted to weigh in on whether an agency has made the best possible interpretation under the circumstances indicated by the administrative record and money, that's fair. However, national news networks stream in the background of my workday.? I’m not having this conversation here.?
But I digress.??
Agencies justify agency action, whether it be a notice of agency action, a rulemaking, creation of revision of agency policy, or simply requesting information from the public.? Justify is a less formal way of saying, “[F]ind the statutory authority and economic justification to take an action that could impact the national economy.” [iv]?Nonetheless, agency actions have always had to be consistent with statutory mandates like the Administrative Procedure Act, the Regulatory Flexibility Act, the Privacy Act, the E-Government Act, and Presidential mandates such as Executive Order 11988.
Post Loper, I will remain a scholar of the Administrative Procedure Act.? I will triple-check my understanding of the APA to ensure an action is exempt from notice and comment. ?My subsequent memorandum of law delineating a legislative rule requiring interagency negotiation from simple fact sheets containing no impact on the national economy will again be well supported by D.C. Circuit[v] and 5th Circuit[vi] case law.?
Notice the Court’s refusal to ridicule Skidmore as it does Chevron. ?To the Loper court, “the informed judgment of the Executive Branch could be entitled to great weight.”[vii]? The majority doesn’t appear offended by Skidmore deference at all, “[t]he weight of such a judgment in a particular case … would depend upon the thoroughness evident in its consideration, the validity of its reasoning…”[viii]? The Court also referenced the New Deal era concept of “giving appropriate weight to the judgment of those whose special duty is to administer the questioned statute,” while of course maintaining its position as the final arbiters of statutory interpretation.[ix] ?All this is why I say business as usual: state your authority and support it well.?
What may change is the frequency with which agency action is challenged, but evidence of that will come with time.? But in response, you reply on your administrative record as evidence of your decision-making thoroughness.? Administrative records have always been required because agencies should be both mission and process proponents.? C-SPAN is older than Barney.[x]?? Were you unaware agency heads could be subpoenaed before Congress to justify or explain the actions of their subordinates? [xi]. You’ve always known the government must be prepared to "show its work" (no matter how “painful” the inquiry appears to be). ?However, provided your understanding and analysis of APA 702/553 is strong and well supported by case law and component legal, I don’t see why Loper would result in dismay.? The Supreme Court didn’t upend the APA. The APA remains the guideline by which agencies operate, and the Supreme Court retains their respect for the APA. [xii]??
“Congress [] enacted the APA “as a check upon administrations whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices. [] The APA prescribes procedures for agency action and delineates the basic contours of judicial review of such action.”?
The APA is way more than a format.
Enacted in 1946, according to the?Attorney General’s Manual on the APA?(1947), its priorities are to “require agencies to keep the public currently informed of their organization, procedures, and rules,” “provide for public participation in the rulemaking process,” “prescribe uniform standards for the conduct of formal rulemaking and adjudicatory proceedings,” and “restate the law of judicial review.” [xiii] Rulemakings and regulations are composed of individual policy decisions.? Thus, it asks, “How well-developed and supported are the policy decisions within an agency’s regulatory priorities?”?
I don’t think Loper changes agency rulemaking.? Don’t panic; instead, lend your brainwaves to examining how you feel about decision-making in government.? Focus your thoughts on matters such as:
In 2025, the world now knows there will be a change in the US presidential administration.? Regardless of the election result, you’ll see an administration end, and another begin.?[xv]? Is there time to consider the questions above?? Is there time for these lines of inquiry in a race of priorities, including possible government shutdowns, efficient agency transitioning into the next administration, or new judicially imposed statutes of limitations on agency liability? As always, you will do your best with what you have.? If challenged, the Court assesses whether your agency’s action represents the “best interpretation” of statutory authority.? The APA’s requirements remain valid, and it provides instructions on issuing agency action.? Adhering to the APA must be evidence supporting a finding that an agency produced the best available interpretation.? Agencies exist to serve public functions, so agency policy decisions should be data-based and well-supported by existing authority. Can you disagree???
Recently, as part of the National Bar Association Region XII Constitution Day, an initiative on voting rights, I spoke to two groups of seniors at Thomas Coolidge High School in Washington, D.C. ?As a result, our discussion about the foundational principles of the United States government is floating through my subconscious. The responsibilities and principles of government also require us to prioritize questioning ourselves despite there being no proverbial “room” in the budget of time and appropriations to allow for such thought-intensive and discussion-provoking deliberation.? ?
I take from Loper the potential of larger spaces to question agency decision-making processes or the process by which we inspire or instill process. ?If we’re going to do this right, we’re living in an exciting time of anticipation in Public Administration and Administrative Law (Admin Law). And it's about time.
The cool kids took Admin Law.
Admin Law was one of my favorite courses in law school. ?It was interesting and suited my personality; I like order (Regardless of how often I was grounded for not keeping my room clean as a kid). ?I've worked with Admin Law in several environments. It's the process of process. How much process is sufficient for any action at any given time? ?The answer depends on circumstances, and I find the endless possibilities fascinating.
Following a 3L Poverty Law Clinic at Northeastern University School of Law in Boston, I was a Greater Boston Legal Services fellow attorney. While there, I engaged with administrative schemes as an advocate before Administrative Law Judges in Social Security Disability Income appeals, Supplemental Security Income appeals, Supplemental Nutritional Assistance hearings, public housing authority meetings, and more. As a Supervising Attorney at Rising for Justice, I negotiated several reasonable accommodation requests using D.C. regulations to avoid "1B" evictions with local landlords and housing programs[xvi]. ?Now, I engage with the APA daily instead of engaging with examples of administrative schemes. I’m having a good time.
It is an exciting time in Admin Law. The most straightforward cases I encountered as a 3L intern at the First Circuit Court of Appeals were the briefs reviewing decisions of administrative and quasi-judicial bodies and specific sentencing and immigration judge decisions. The facts were grave, but they all sat inside of this set of neatly formatted legal principles, and the challenge was how tightly and succinctly I could explain the appropriate parameters of the review. ?This will continue because the standard of review for Board of Immigration Appeal decisions in the Federal Court of Appeals remains the same. [xvii] ?
In the future, I’m looking forward to case law analysis of agency decision processes, ultimately ending in the affirming of agency action. Still, the question will only be decided once the court has reviewed the agency's decision-making process and described it in detail. ?In other words, the administrative case law books are about to become more interesting.
Picture It.
Admittedly, my excitement for a twist in the Administrative Law textbooks means I should also acknowledge the possibility of agency hesitancy post-Loper.? Hesitancy can look like delaying rulemakings for more favorable administrations or perhaps less progressive interpretations of their authorities than they would’ve pre-Loper. [xviii] However, in my opinion, this hesitancy represents the essence of agency accountability to their mandates; be sure. ?In a perfect world with a functioning legislature, a withdrawn or invalidated regulation is expensive and wasteful, but it’s not the end of the benefit.? Picture it:?
You’re Annie, the agency, and you pass a regulation that is widely well-received and beneficial to the larger public.? But. You are hurrying to pass the regulation you believe is arguably exempted from notice and comment under the APA.? Isaacs for Interest, Inc., the interest group, represents the 30% of the population who do not benefit and successfully challenge regulation at the Supreme Court. ?The public is devastated, the news outlets are flurrying, and petitions are circulating.? Three weeks later, a bipartisan group of senators introduced a bill that would allow for all the benefits previously granted by the regulations and address the provisions that upset the Ivans.? ??
End scene.?
The scenario above is how our chambers of government are intended to function.? The Supreme Court says, “If Congress intends X, it will have to act.”? And Congress acts.? I’ve just described an expensive exercise, but this is usually my response to anxiety about the politicization of the Supreme Court.? Hear me out: What if it corrects the three-chamber balance? [xix]?
Eyes forward, Corner Post.
If you need more to ponder, in my opinion Loper isn't the only recent consequential Supreme Court of late. This term the Court's decision in Corner Post v. Board of Governors is its most unnerving. 144 S. Ct. 2440 (2024) [xx] Since Abbott Laboratories v. Gardner in 1967, our Supreme Jurists agreed Section 702 of the APA allows persons who believe they were harmed by final agency action, such as enforcing a regulation, judicial review by suing the agency.? 387 U.S. 136, 140-41.?
The APA allows suit by any person who has suffered a “legal wrong” or been “adversely affected” by an agency rule.? 5 U.S.C. 702.? A challenge to an agency rule must be “filed within six years after the right of action first accrues.” 28 U.S.C. 2401(a).? Previously, the Eighth and Sixth Circuits "split" on the issue (says the majority).? The Eighth Circuit ruled that APA claims must be brought within six years of the rule’s promulgation, whether the plaintiff would’ve had standing to sue within that initial six-year period.? The Sixth Circuit, the panel of justices held that an APA six-year limitation period begins only once the agency rule injures the moving plaintiff.?
In 2011, the Federal Reserve published the challenged regulation establishing the maximum interchange fee.? In 2021, Corner Post, a merchant accepting debit cards as a form of payment, joined a suit against the Federal Reserve System, exercising their APA right to judicial review.? The complaint challenged a regulation requiring merchants accepting debit cards to pay an interchange fee to the bank that issued the card because it was unreasonable.? A lower court dismissed the suit as time-barred by the default six-year statute of limitations for suits against the United States.? 28 U.S.C. 2401(a). ?In 2024, enter the Supreme Court who ruled that the six-year statute of limitations under the Administrative Procedure Act begins to run when an agency rule injures the plaintiff, not when the rule is promulgated.? This results in newly expanded agency exposure to liability because there now appear to be no limitations on suits against the government.
In fact, writing for the dissent, Justice Ketanji Brown Jackson opined:
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Today’s ruling is not only baseless. It is also extraordinarily consequential. In one fell swoop, the Court has effectively eliminated any limitations period for APA lawsuits, despite Congress’s unmistakable policy determination to cut off such suits within six years of the final agency action. The Court has decided that the clock starts for limitations purposes whenever a new regulated entity is created. This means that, from this day forward, administrative agencies can be sued in perpetuity over every final decision they make.
[xxii] There's never been uniform agreement about 2401(a) and the APA amongst federal circuit courts. Now, we have our decision, and it deserves your attention. Loper is the legal community’s red herring [xxiii], because it’s not the watershed event it was billed as. Loper is serving as a distraction from the terrifying reality created by Corner Post.
Is this mic on?
Corner Post’s vast expansion of government liability is epic – it's game-changing.? Justice Jackson passionately argues that the results of Corner Post, will be “profoundly destabilizing for both Government and businesses” while allowing “well-heeled litigants to game the system.” [xxiv] I don't think that's an exaggeration. The oldest federal agency in the US is the Federal Marshall Service, created in 1789. The first Code of Federal Regulations issued in 1938. Perhaps it's less likely that we'll see a challenge to an 18th century action. But what's to say we won't see increased challenges to New Deal Era programs concerning banking or work reform? [xxv] In 2024, if a new store is impacted by a 1994 regulation, the store can challenge the action and force the agency to support its decision in court.? I sure hope your policy justifications from thirty years ago are readily available.
The Court’s decision in Loper has been sensationalized due to years of pending tension via begrudging Supreme Court dissents.? Not to be all "old Kanye" about it all, but in my opinion, Corner Post had the most significant impact on Admin Law this year.?
What's funny (not "haha" funny, but "I told you so" funny) is that both the majority and the dissent say, “‘[T]he ball is in Congress’ court.’” [xxvi] Earlier, I pondered (aloud to you) whether a politicized supreme court has the potential to correct the 3-chamber government balance. The Corner Post Reversal Act, was introduced on July 11, 2024, by Representatives Jerrold Nadler and Lou Correa. It would amend the APA to require that most APA claims “be commenced within 6 years after the date on which the relevant agency action was finalized." See. There is both potential and opportunity to correct the balance.
In a single term, the Supreme Court secured the necessary majority to both overrule Chevron and expose agencies to in in other case, by implication, removed any temporal shield the government previously had from APA challenges. What a time in Admin Law.
Ariel Woodard-Stephens is an attorney working in Washington, D.C.? She resides in Northern Virginia with her dog, Charlotte Ray.? In her spare time, Ariel enjoys spending time with family and friends, as well as teaching group fitness. ?DISCLAIMER: Any writings on LinkedIn consist of individual opinions.? These writings and views expressed are made within the author's personal capacity; they should not be attributed to any current employer, former employer, or professional organization.
[i] Kisor v. Wilkie, 588 U.S. 558, 563,591 (2019) (In which it reconsidered “Auer deference,” a doctrine that required courts to defer to agency interpretations of ambiguous regulations, “[i]ssues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes.”); see also The Supreme Court’s coming war with Biden, explained | Vox .
[ii] “Congress [] enacted the APA “as a check upon administrations whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices. [] The APA prescribes procedures for agency action and delineates the basic contours of judicial review of such action.”? Loper at 2261.
[iii] Webster’s Dictionary defines "theory" as principle supported by evidence.? I think of Supreme Court decisions as judicial theory resulting in financial or emotional consequences.?Loper is no different. ?Things cost money.? Who is paying for the resultant need for agencies to do “more”? ?But I digress.
[iv] Regulations must state their impact on the economy, small entities, the environment, and more. Jeffrey S. Lubber, A Guide to Federal Agency Rulemaking, "Other Procedural Statutes Affecting Rulemaking", see also Circular A-4, "Regulatory Impact Analysis: A Primer” (whitehouse.gov).
[v] E. Fraser, D. Kessler, M. J. B. Lawrence, S. Calhoun, The Jurisdiction of the D.C. Circuit, Cornell Journal of Law and Public Policy, Vol. 23:131(2013), pgs. 134,142, available at: https://ww3.lawschool.cornell.edu/research/JLPP/upload/Fraser-et-al-final-3.pdf .
[vi] Keep an Eye on these Fifth Circuit Cases for Potential Supreme Court Review, available at https://www.law.com/nationallawjournal/2024/08/20/keep-an-eye-on-these-5th-circuit-cases-for-potential-supreme-court-review/?slreturn=20241005144501.
[vii]. Loper at 2248.
[viii] Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) available at https://supreme.justia.com/cases/federal/us/323/134/ .
[ix] Loper at 2248.
[x] CSPAN was founded in 1979; Barney premiered in 1992.
[xi] It’s not the same thing, but it is.
[xii] Loper at 2261-65.
[xiii] The Attorney General’s Manual on the Administrative Procedure Act, published in 1947, remains the principal guide to the structure and intent of the APA. See also Podcast: Demystifying Agency Rulemaking, Ep.1: Navigating the Administrative Procedures Act to Safeguard Against Overreaching Regulations | McGlinchey Stafford PLLC. https://www.mcglinchey.com/insights/podcast-demystifying-agency-rulemaking-ep-1-navigating-the-administrative-procedures-act-to-safeguard-against-overreaching-regulations/
[xiv] Remember when I said, “things cost money”?
[xv] It’s interesting to contemplate the above in the face of another looming deadline for a federal appropriation bill to fund the government and keep non-essential agency functions running. The administrative functions of agencies don’t run during a government shutdown.
[xvi] In D.C., “1B evictions” refer to evictions for reasons other than nonpayment of rent.? These cases are usually filed for lease violations or evictions following foreclosure. https://code.dccouncil.gov/us/dc/council/code/sections/42-3505.01
[xvii] Under 8 C.F.R. § 1003.1(d)(3), the BIA reviews an IJ’s factual findings for “clear error,” and it reviews all other issues de novo, including “questions of law, discretion, and judgment.” The Supreme Court has recognized that “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Gypsum Co., 333 U.S. 364, 395 (1948); see also Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985) (finding that, under a clear error standard, where a trier of fact’s “account of the evidence is plausible in light of the record viewed in its entirety, the [reviewing court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently”); Matter of R-S-H-, 23 I&N Dec. 629, 637 (BIA 2003). Thus, the clear error standard is highly deferential to the IJ.
[xviii] Cass Sunstein, The Consequences of Loper-Bright, available at 4881501.pdf (elsevier-ssrn-document-store-prod.s3.amazonaws.com).
[xix] The Constitution of the United States divides the federal government into three branches: legislative, executive, and judicial. This ensures that no individual or group will have too much power. See Branches of the U.S. government | USAGov.
[xx] Loper Bright wasn't a surprise to anyone with a passing interest in administrative law. Writing for the dissent, Justice Jackson believes the decision has the ability to destabilize the government. She took exception to this decision and faulted the majority’s characterization of the courts of appeals’ rulings as creating a circuit split. In particular, she observed that Herr v. United States Forest Service, the Sixth Circuit case that, in the majority’s view, created the circuit split, dealt with an as-applied challenge to a rule, not a facial challenge. 865 F.3d 351 (2017). The Sixth Circuit, she noted, has not extended its decision in Herr to facial challenges to final agency actions.
[xxi] North Dakota Retail Ass’n v. Board of Governors of FRS, 55 F.4th 634 (2022); Wind River Min. Corp. v. United States, 946 F.2d 710, 715 (CA9 1991); Dunn-McCampbell Royalty Interest, Inc. v. National Park Serv., 112 F.3d 1283, 1287 (CA5 1997); Harris v. FAA, 353 F. 3d 1006, 1009-10 (CADC 2004); Hire Order Ltd. v. Marianos, 698 F. 3d 168, 170 (CA4 2012); Odyssey Logistics & Tech. Corp. v.? Iancu, 959 F. 3d 1104, 1111-12 (CAFed. 2020).
[xxii] Corner Post at 2470 (Jackson, J., dissenting).
[xxiii] A piece of information meant to be misleading or distracting.
[xxiv] Corner Post at 2470 (Jackson, J., dissenting).
[xvi] Corner Post at 2461.
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2 个月?? Thanks for sharing this with us Ariel Woodard-Stephens,Esq.