Eleventh Circuit Immigration Decision Joins Debate Over Stare Decisis After Loper Bright

On October 30th, in Bastias v. U.S. Attorney General, the Eleventh Circuit issued an opinion highlighting a growing debate in the lower courts after Loper Bright on how broadly statutory stare decisis shields Chevron-era precedent upholding agency actions. Loper Bright overruled the Chevron doctrine, holding that the APA requires courts to independently interpret statutes, which have a single best reading fixed at the time of enactment. But “[b]y doing so,” the Court wrote, it “d[id] not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.” In the wake of Loper Bright, lower courts have grappled with whether this passage refers to the specific agency decision upheld under Chevron or the agency’s interpretation of the statute, reaching differing conclusions.

In Bastias, much ink was spilled on this thorny and important question. In 2022, the Eleventh Circuit denied Bastias’s petition for review of a Board of Immigration decision that Bastias was deportable based on a 2018 Eleventh Circuit decision, Pierre v. U.S. Attorney General, deferring to the BIA’s interpretation of the Immigration and Nationality Act under Chevron. Bastias sought cert in the U.S. Supreme Court, which granted the petition, vacated that ruling, and remanded for further consideration in light of Loper Bright. The Eleventh Circuit has now once again denied Bastias’s petition. All three judges on the panel wrote separately, concurring in the judgement to explain their reasoning.

Judge Newsom’s Concurrence

Judge Newsom wrote that “[t]he only truly difficult question . . . is whether Pierre remains good law, despite the facts (1) that it specifically grounded its interpretive analysis in Chevron and (2) that the Supreme Court expressly overruled Chevron in Loper Bright[.]” “Counterintuitive though the conclusion may be,” in his view Pierre remained binding. Judge Newsom reasoned that under the Eleventh Circuit’s prior panel precedent rule, the Loper Bright opinion did not undermine Pierre to the point it abrogated it and thus Pierre still controlled. He expressed the view that it is “clear” that in Loper Bright “[t]he Supreme Court overruled Chevron, but it did so only on a prospective basis[.]” But he noted “much uncertainty” surrounding the passage of Loper Bright granting statutory stare decisis to Chevron-era precedent, which “has vexed the lower courts.” Specifically, the Eleventh Circuit’s “sister circuits have expressed divergent views about what sorts of “holdings” the Supreme Court meant to preserve—and in particular, whether stare decisis treatment extends to a court’s Chevron-era adoption of an agency’s statutory interpretation or, instead only, and more narrowly, to the court’s case-specific application of that interpretation to the facts before it.” Judge Newsom suggested that Loper Bright’s statutory stare decisis passage may be best read to refer “more broadly, to [a] court’s antecedent determination that the agency’s reading of the governing statute was ‘lawful,’” as opposed to “a court’s case-specific application of a judicially approved agency interpretation to a particular set of facts[.]”

Judge Newsom concluded by suggesting that the Eleventh Circuit rehear Bastias en banc to “permit the full Court to carefully consider and decide . . .  how Loper Bright’s recognition of ‘statutory stare decisis’ principles interacts—if at all—with our own prior-panel-precedent rule” and the way courts “ought to deal with Chevron-era precedents on a going-forward basis[.]”

Judge Marcus’ Concurrence

Judge Marcus’s concurrence parted ways with Judge Newsom’s on whether Pierre was binding and the scope of Chevron-era precedent entitled to statutory stare decisis after Loper Bright. In his view, Judge Newsom’s approach “risks saying too much and taking Loper Bright too far, enabling Chevron, which is now a dead letter, to continue to cast a long shadow over our understanding of prior decisions.” Instead, “[t]he critical question is whether the Chevron-era court adopted an agency’s proffered reading in full.”

Judge Middlebrooks’ Concurrence

Finally, Judge Middlebrooks noted that Loper Bright “cast[s] doubt on previous statutory interpretation decisions resting on Chevron deference.” But he did not opine on the proper scope of statutory stare decisis for those decisions except to observe that “the question is far from settled.” In his view, Chevron was unnecessary to resolve the statutory interpretation question in this case, as the BIA’s reading of the INA provision at issue was the best one.

The scope of the universe of Chevron-era precedent entitled to statutory stare decisis is an important and recurring question, as this case illustrates. For those interested in this debate, all three thoughtful opinions are worth reading. At some point the Supreme Court may need to weigh in to answer it. It will be interesting to see whether Bastias files a petition for rehearing en banc, as Judge Newsom suggested. This case is yet another Loper Bright-implementation case to watch.

Michael Pepson is regulatory counsel at Americans for Prosperity Foundation.