The Supreme Court has declined to take up PG Publishing Co. v. NLRB, a case in which a Pittsburgh newspaper sought review of the “highly deferential” treatment given by the Third Circuit to the National Labor Relations Board’s interpretation of its own statutory authority.  The newspaper’s petition for writ of certiorari was denied on October 5^th.  The Court’s decision leaves unresolved the widening disagreement among the courts of appeals over the continuing legitimacy and scope of deference to the NLRB following the overruling of the Chevron doctrine in Loper Bright Enterprises v. Raimondo. 

Earlier this summer, I highlighted the D.C. Circuit’s decision in Hospital Menonita and its rejection of deference to the National Labor Relations Board.  Last week, in Siren Retail Corporation v. NLRB, the Second Circuit joined the ranks of the Fourth, Fifth, Sixth, Tenth, and D.C. Circuits by emphasizing the judiciary’s obligation, after Loper Bright, to exercise independent judgment when determining the scope of agency authority, even under pre-APA organic statutes like the National Labor Relations Act.  This is an important development that demonstrates how Loper Bright is reshaping the law beyond the APA and the standard of review set out in 5 U.S.C. § 706.  There is growing consensus that Loper Bright has constitutional relevance for understanding the judiciary’s responsibility for determining what the law means. 

One of the more doctrinally vexing passages in Loper Bright Enterprises v. Raimondo is the Supreme Court’s admonition that, notwithstanding the significant doctrinal change caused by the overruling of Chevron, “holdings of those cases” previously decided under that interpretive framework would “still [be] subject to statutory stare decisis.”  As Chief Justice Roberts explained, “[m]ere reliance on Chevron cannot substitute a ‘special justification’ for overruling” a prior holding, “because to say a precedent relied on Chevron is, at best ‘just an argument that the precedent was wrongly decided.’”  These statements left much unanswered, and two years later, the lower courts continue to grapple with how to apply the principle of stare decisis to Chevron Step-Two precedents.  The Fourth Circuit’s recent decision in Yanez Piedra v. Blanche provides an interesting illustration of how one court has sought to resolve such questions while simultaneously highlighting various possible interpretations of the Supreme Court’s instructions. 

Last month, Americans for Prosperity Foundation (“AFPF”) hosted a special summit marking the two-year anniversary of the Supreme Court’s momentous decision in Loper Bright Enterprises v. Raimondo.  The event was well attended, and registrants spent a half-day listening to experts explore how Loper Bright is driving the Trump Administration’s regulatory agenda and giving Congress the opportunity to reassert its Article I authority and rethink its relationship with the administrative state.  While most public debate about Loper Bright understandably has focused on developments within the judiciary, AFPF’s summit underscores how the decision has proven more immediately transformative outside the courts, as political actors—legislators and regulators, alike—adjust to a world without Chevron deference. 

Loper Bright Through the Eyes of a Senator 

By John J. Vecchione 

Ryan Mulvey has ably discussed the implications of the history and holding of Hospital Menonita de Guayanma v. NLRB in these pages.  To sum up, the NLRB had a successor-bar rule requiring that an employer deal with a union for a year after taking over the company based on an irrebuttable presumption it had majority-employee support until at least a year after the successor took over.  The D.C. Circuit had previously given deference to the NLRB’s rule even though there was evidence that union support had dropped below a majority.  It is of special consequence that the case was remanded to the D.C. Circuit in light of the holding in Loper Bright.  The issue seemed to be whether the opinion would come out the same if no deference was given to the NLRB. 

In Environmental Defense Fund v. EPA, the D.C. Circuit recently flagged an interesting impact Loper Bright might have on administrative law. Judge Henderson’s opinion suggests the possibility that, after Loper Bright, the Chenery doctrine—which holds that “reviewing courts ‘must judge the propriety of [agency] action solely by the grounds invoked by the agency’”—may not apply to “pure statutory interpretation questions.” This question matters because in challenges to agency decisions like federal regulations and adjudications, to the extent the Chenery doctrine applies it limits the grounds on which a court may uphold the agency action. So, if this doctrine does not apply to statutory interpretation questions post-Loper Bright, agency decisions that match what a law is best understood to mean can be upheld on that basis in certain circumstances, even if the agency gave different reasons for its decision at the time.