Cert Petition to Watch: Tennessee v. Kennedy Highlights Important Loper Bright Implementation Question

A recent cert petition asking the Supreme Court to vacate the Sixth Circuit’s decision in Tennessee v. Kennedy, and remand with instructions to dismiss the case as moot under United States v. Munsingwear, highlights an important Loper Bright implementation question that the Court may need to resolve in a future case: the scope of statutory stare decisis protection of agency interpretations of statutes that were upheld by courts under the Chevron regime. (Recasting Regulations previously discussed this case here.) 

In overturning Chevron, the Loper Bright Court granted some protection to prior agency actions upheld under the Chevron regime. The Court went out of its way to make clear that Loper Bright “do[es] not call into question prior cases that relied on the Chevron framework” and that “[t]he holdings of those cases that specific agency actions are lawful . . . are still subject to statutory stare decisis[.]”   

As Tennessee v. Kennedy illustrates, there appears to be some confusion in the lower courts as to whether only the specific agency decisions upheld under Chevron are entitled to statutory stare decisis or, alternatively, the agency’s statutory interpretation itself receives that protection. The panel majority’s revised opinion concluded that “a ‘specific agency action’ attaches to an agency’s particular construction of a statute,” citing Loper Bright. But in dissent, Judge Kethledge persuasively explains that that passage of Loper Bright is best read to limit statutory stare decisis protections to the particular regulations that were upheld under Chevron.  

The answer to that question matters because if statutory stare decisis travels with the agency’s statutory interpretation, it would allow a form of de facto Chevron deference to continue to shield those interpretations indefinitely. This would, to some extent, limit Loper Bright’s core holding that courts must independently interpret statutes including in cases involving agencies.  

This cert petition is worth watching. And it will be interesting to see if the Court GVRs Tennessee v. Kennedy under Munsingwear or allows that decision to remain on the books in the Sixth Circuit.