Loper Bright and Stare Decisis in the Ninth Circuit: Murillo-Chavez v. Bondi 

When the Supreme Court overruled Chevron last year in Loper Bright Enterprises v. Raimondo, Chief Justice John Roberts seemed at pains to limit the impact of upending the Chevron methodology to future cases.  He explained that Loper Bright “do[es] not call into question prior cases that relied on the Chevron framework.  The holdings of those cases that specific agency actions are lawful . . . are still subject to statutory stare decisis[.]”  In other words, the fact that Chevron might have framed prior courts’ reasoning about the proper interpretation of the law was not enough of a “special justification” to overrule a statutory precedent.  It would, “at best,” represent “‘an argument that the precedent was wrong decided.’” 

Courts of Appeal Grapple with Fate of Step Two

Loper Bright’s full implication for stare decisis and the precedential force of thousands of Step Two Chevron decisions is unknown.  The Loper Bright dissenters, led by Justice Kagan, expressed incredulity that the Court’s efforts to insulate forty years of case law would be successful.  As Justice Kagan suggested, “[c]ourts motivated to overrule an old Chevron-based decision can always come up with something to label a ‘special justification.’”  And the courts of appeal, for their part, continue to grapple with the question.   

The Sixth Circuit Approach

Last fall, the Sixth Circuit adopted a strikingly conservative approach.  In Tennessee v. Becerra, the circuit held that, “while Loper Bright opens the door to new challenges based on new agency actions interpreting statutes, it forecloses new challenges based on specific agency actions that were already resolved via Chevron deference analysis.”  Looking to past circuit precedents upholding related, but now-repealed, regulations that implemented the same “ambiguous” statute, the Tennessee court concluded it was prohibited from offering its best, independent judgment of the law.  But the decision to understand statutory stare decisis to include circuit court precedent in this way was, and remains, controversial.  That much is clear from Judge Kethledge’s dissent. 

The Ninth Circuit Approach

The Ninth Circuit’s decision earlier this month in Murillo-Chavez v. Bondi reflects a somewhat more nuanced approach, which arguably complements the position taken by one of my colleagues in response to Tennessee.  The Bondi case concerned the Board of Immigration Appeals (“BIA”) and its determination about whether a certain offense qualifies as “crime involving moral turpitude” (“CIMT”).  The Ninth Circuit started by noting the obvious tension between Loper Bright’s instruction that a judge provide independent judgment about the best meaning of the law and the duty to afford stare decisis effect to the many Step Two cases involving past deference to BIA’s CIMT determinations. 

[Under Loper Bright, we may] continue to “look to agency interpretations for guidance” . . . recognizing that the agency’s “body of experience and informed judgment” may give those interpretations the “power to persuade[.]” . . .  However, they have only that power, and we “need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.” 

We have no precedential decision concerning whether either of the two Oregon statutes that Murillo was convicted of violating in 2018 is a CIMT.  “When we have not previously considered whether the offense at issue is a CIMT, our most useful guidance often comes from comparing the crime with others that we have previously deemed morally turpitudinous.” 

The Bondi court ultimately decided that, while existing precedent about the meaning of CIMT was relevant—and still good law—it was not binding, and its usefulness was limited in the face of the judges’ obligation to provide their independent judgment about legal meaning. 

At least some of our prior decisions defining crimes as CIMTs were based on Chevron deference.  After Loper Bright, those “prior cases that relied on the Chevron framework . . . are still subject to statutory stare decisis despite our change in interpretive methodology.”  Thus, our holdings “that specific agency actions are lawful” were not overruled by Loper Bright simply because they relied on Chevron.  But, given Loper Bright’s clear instruction that we otherwise need no longer defer to the agency’s interpretation, we take the Supreme Court to mean that although the holdings of our prior cases in which Chevron deference was applied remain precedential until overruled, we are not compelled to use them as analytical building blocks in every case to determine whether the BIA correctly found, in the case before us, that a previously untreated crime is a CIMT.  Rather, although the logic and reasoning in our prior decisions that relied on Chevron may aid us in determining whether a crime we have not previously confronted is a CIMT, just as we may be persuaded by the agency’s analysis in the case before us, in the end we must exercise our “independent judgment,” . . . in deciding the present case

Impact of Bondi Opinion

The Bondi opinion underscores an unresolved ambiguity about what, precisely, is supposed to receive stare decisis effect post-Loper Bright.  As one commentator suggests, it is unclear whether that effect “applies at the level of the particular statutory provision at issue in a prior case,” “at the level of the particular legal interpretation,” or with respect to a “particular agency action.”  The Bondi court decided it was very important that prior cases upholding the lawfulness of BIA’s interpretation of CIMT implicated different statutory offenses and thus involved unique determinations or “agency actions.”  That might have given the Ninth Circuit enough reason to sidestep existing caselaw, but without squarely addressing its precedential force.  Whether other courts will adopt the same approach has yet to be seen.  This more narrow understanding of the Chief Justice’s statements about stare decisis could open the door to a more significant unsettling—or revisiting—of older cases resolved in the government’s favor at Chevron Step Two.  That could be a welcome development.