Judge Bumatay’s Powerful Warning in Lopez v. Bondi on Loper Bright Implementation, Skidmore Deference, and Stare Decisis

This week, in Lopez v. Bondi,the Ninth Circuit denied a petition for rehearing of a panel decision upholding the Board of Immigration Appeals’ (“BIA”) conclusion that petty larceny convictions are “crimes of moral turpitude.” Judge Bumatay authored a dissent. While Lopez is ostensibly an immigration dispute, it may have much broader administrative law implications because of how the panel majority applied Loper Bright to the specific statutory interpretation questions at issue in that case. As Judge Bumatay put it:“This case is of rare importance. As the first to interpret Loper Bright in the immigration context, Lopez will govern hundreds of cases on the Ninth Circuit’s docket. But even more, this case will infect other areas of law—no doubt spreading to our broader administrative-law jurisprudence.” Underscoring the significance of the panel’s misapplication of Loper Bright, Professors Michael Kagan and Christopher Walker filed an amicus brief in support of rehearing en banc (which Judge Bumatay cites).

Judge Bumatay forcefully argues that Lopez’s reasoning is based on a fundamental misreading of Loper Bright that “conflicts with” that landmark decision for three reasons that independently justify en banc review: “First, Lopez favored agency deference rather than the best reading of the statute. Second, Lopez applied agency deference even without any statutory ambiguity. And third, Lopez refused to revisit Chevron-based precedent that is clearly irreconcilable with Loper Bright.”

Loper Bright “announced a sea change in how federal courts must treat the Executive Branch’s interpretation of the law,” Judge Bumatay wrote, emphasizing Loper Bright’s core teaching that “[c]ourts must independently interpret statutes and must not defer to an executive agency’s legal interpretations.” Loper Bright, of course,ended the Chevron regime, under which courts would give binding deference to agency statutory interpretations under certain circumstances. In the dissent’s view, “the panel took the extraordinary step of resurrecting Chevron under the alias of “Skidmore deference.” It did this by essentially putting the cart before the horse, jumping to whether the BIA’s conclusion that Mr. Lopez’s criminal convictions were “crimes of moral turpitude” was entitled to Skidmore respect, instead of first ascertaining for itself the best reading of the statute, as Loper Bright now requires. In this way, the dissent continues, “the panel abdicated the judicial role and just applied Chevron deference by another name.”

The dissent also took issue with the panel’s decision “to ‘afford’ the BIA’s interpretation of the” law ‘Skidmore deference,’” even though the plain language of the statute “forecloses Lopez’s [pardon waiver] argument.” In other words, even though the panel found that the statute was unambiguous, it still granted the agency’s interpretation respect under Skidmore. In the dissent’s view, “This makes little sense. If the statutory text resolves the matter unambiguously, then we stop there. We don’t then check whether the Executive branch agrees with the plain meaning. . . . So deference and respect have nothing to do with this question.”

Finally, the dissent suggested rehearing en banc was warranted because “the panel misread Loper Bright to preclude three judge panels from revisiting circuit precedent based on the now-defunct Chevron doctrine.” This portion of the dissent brings to the surface an issue that has been causing confusion in the lower courts: the proper scope of statutory stare decisis for past cases decided under the now-repudiated Chevron doctrine. The Supreme Court said in Loper Bright that in overruling Chevron, 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.” To date, lower courts have reached differing conclusions on whether this passage refers to the specific agency decision upheld under Chevron or, alternatively, the agency interpretation of the statute that was upheld under Chevron. In other words, does statutory stare decisis travel with the specific agency decision or the agency’s interpretation of the statute that was used to justify the agency decision upheld under Chevron. Judge Bumatay interprets this passage in another way that may be worth paying attention to, writing that “Loper Bright’s statement about ‘prior cases’ refers to its prior cases—not ours.” The implication of this reading of Loper Bright appears to be that at least under the Ninth Circuit’s decision in Miller v. Gammie, lower court precedent upholding agency decisions under Chevron is not entitled to statutory stare decisis, which, if ultimately accepted, may be a big deal.

In the dissent’s view, the panel misread and misapplied the statutory stare decisis passage in Loper Bright in at least two ways. “First, Loper Bright was a clear ‘intervening United States Supreme Court decision’” under Miller that required the panel to revisit Chevron-era circuit precedent without granting it stare decisis effect. The dissent argued that “the panel overread” the sentence in Loper Bright on stare decisis “to preclude lower courts from revisiting lower-court precedents that relied on Chevron.” To the contrary, “any Ninth Circuit precedent that relies on Chevron to defer to an agency’s interpretation of the law is ‘clearly irreconcilable’ with Loper Bright.” The dissent continued: “neither Loper Bright nor our stare decisis factors precluded us from revisiting and overruling Chevron-based precedent.” Second, the panel’s declaration that only a new agency interpretation permits us to revisit Chevron-based precedent lets the Executive branch—not the courts—dictate the interpretation of the law.” In the dissent’s view, that approach “defies sound logic— and worse still, it resurrects Chevron.”

Judge Bumatay sums up where the dissent parts ways with the panel opinion’s application of Loper Bright thus: “Loper Bright represented one of the most dramatic changes in how courts should do statutory interpretation. Even so, Lopez acts as if nothing has changed.” That captures well why the panel opinion should not be allowed to stand. And for those who are interested the debate over Loper Bright’s impact on statutory interpretation, administrative law, and the power relationship between courts and agencies, Judge Bumatay’s thoughtful dissent from denial of rehearing en banc in Lopez is worth reading. It will be interesting to see whether Mr. Lopez seeks Supreme Court review on one or more of the Loper Bright implementation questions and whether the Court grants cert.