March–April Circuit Court Round-Up: Recent Loper Bright Decisions

The past two months have seen Loper Bright play an important role in the adjudication of several appeals across multiple circuit courts.  Here are the instances where Loper Bright, and the end of Chevron deference, was particularly notable.

Brown-Forman Corp. v. Nat’l Labor Relations Bd., No. 25-1060 (6th Cir. Mar. 6, 2026)

First is the Sixth Circuit’s decision in Brown-Forman Corporation, a case involving the NLRB’s enforcement against a bourbon distillery for alleged unfair labor practices and interference with employee-unionization efforts.  After the International Brotherhood of Teamsters started contacting Brown-Forman’s employees, the distillery’s management tried to appease employees with an immediate increase in benefits, while also holding mandatory meetings to dissuade them from unionizing.  A midnight-hour across-the-board wage increase ostensibly led to the union representation election failing.

Following a complaint by the teamsters, an administrative law judge at the NLRB concluded the distillery had violated various labor laws and recommended the agency issue a bargaining order requiring the distillery to recognize and negotiate with the union.  These sorts of orders rely on a Biden-era NLRB adjudication, Cemex Construction Materials Pacific, which had expanded the situations in which union bargaining could be required without first requiring a successful representation election.  The Board agreed with the ALJ; the Sixth Circuit reversed. 

Although the Circuit acknowledged the agency’s factual findings were supported by substantial evidence, it nevertheless held the bargaining order was outside the scope of the NLRB’s remedial authority because the Cemex standard it relied upon was itself an improper exercise of adjudicatory authority.  The court vacated the NLRB’s order and remanded for reconsideration.

Loper Bright played an important role in defining the boundaries of Congress’s delegation to the NLRB and, specifically, the requirement that “sweeping policy changes” be introduced not through adjudication, but rather formal rule-making procedures that provide an opportunity for public participation.  As the panel explained, “some of [the boundaries imposed by Congress in its delegation] are procedural, so even where the substance of the Board’s policy may fall within its general area of delegated power, improper ‘reliance on adjudication’ warrants invalidating the Board’s action.”  And because the APA prohibits agencies from “using adjudication to engage in rulemaking,” the underlying Cemex standard must fail. 

Judge McKeague captured this application of Loper Bright quitesuccinctly:

If the [NLRB] could circumvent the limitations of its delegated authority by promulgating general, non-case specific rules through adjudication, it would upset Congress’s careful delegation of legislative authority, run afoul of the separation of powers constrains, deprive the public of its right to participate in the Board’s quasi-legislative processes, and erase 29 U.S.C. § 156 from the United States Code.  Courts uphold their essential function by holding firm on the limits of agency authority through judicial review.

Hodzic v. Bondi, No. 24-1204 (1st Cir. Mar. 19, 2026)

Turning to the First Circuit, Hodzic v. Bondi involved consolidated petitions for review from a married Bosniak couple who had entered the United States on forged Slovenian passports roughly twenty-five years ago.  When paroled into the country, the Hodzics argued they fled then-Yugoslavia out of fear of the increased presence of Serbian military forces in their home region.  A series of immigration proceedings followed, including a petition for asylum, a petition for adjustment of status based on an approved employment-based visa, and attempts to seek review in federal court.  Most recently, the Hodzics filed a motion to reopen sua sponte with the Bureau of Immigration Appeals, arguing the Supreme Court’s decision in Niz-Chavez v. Gardland introduced a “fundamental change in case law” that made them “eligible for non-lawful permanent resident cancellation of removal.”  BIA denied the motion to reopen.

On appeal, the Hodzics claimed Loper Bright should mark the end of any sort of deferential judicial review of BIA’s denials of their various motions.  The Circuit, however, noted the immediate case did not require interpretation of an ambiguous statute.  Rather, the Hodzics’ legal challenges implicated BIA’s “discretionary authority in considering motions to reopen.”  The Circuit further noted Loper Bright “is inapposite” because the “Hodzics do not argue” it “applies beyond the APA context.” 

This note is interesting insofar as its underscores an attempt to read Loper Bright as narrowly as possible, focusing on its construction of Section 706 and the interpretive role of a judge, rather than attending to the broader constitutional atmospherics of the Supreme Court’s consideration of the judicial function under Article III.

Avila v. Bondi, No. 25-3248 (8th Cir. Mar. 25, 2026)

The Eighth Circuit’s decision in Avila has received attention for cementing an emergent jurisdictional split vis-à-vis the Trump Administration’s interpretation of Section 1225 of the Immigration and Nationality Act, which authorizes detention without bond for any alien who is an “application for admission” to the United States.  Central to that interpretative dispute is whether aliens already present within the country are still considered to be “seeking admission,” despite having transversed the border, albeit unlawfully.  Like the Fifth Circuit, the Eighth sided with the Administration, concluding it would be improper to read the phrase “seeking admission” as referring only to “someone taking ‘present-tense, affirmative action’ to obtain lawful entry.”  On this view, aliens subject to Section 1225 are not entitled to a bond hearing.

Loper Bright makes a brief—but important—appearance in Judge Erickson’s dissent.  Relying on Loper Bright’s reference to the “longstanding practice of the government” in helping to determine the meaning of ambiguous laws, the judge wrote:

All three branches of government understood . . . [Congress’s 1996 immigration amendments] to maintain the distinction between unadmitted noncitizens in the interior and those arriving at the border for detention purposes.  Five presential administrations, including the first Trump administration, and most immigration judges interpreted § 1225 to apply only to those arriving at the border.  This conduct is something courts ought to consider.

Courts will continue to dispute the proper meaning and scope of Section 1225, but it is important to point out some questions raised by Judge Erickson’s use of Loper Bright.  First, it is unclear whether the Supreme Court’s reference to “longstanding ‘practice of the government’” was intended to be so broad as to cover “[a]ll three branches of government,” as opposed to the views of the Executive Branch.

Second, one might quibble with Judge Erickson’s characterization of the respect required by Loper Bright for longstanding and consistent agency legal interpretations.  This respect should turn on the potential for the agency’s interpretation to provide evidence probative of the original public meaning of an ambiguous statute.  Indeed, as I have explained, “respect” for an agency is just another way to conceptualize application of the contemporanea exposito and interpres consuetudo canons.  Judicial “respect” does not entail, however, recognition of the Executive Branch’s liquidation of legal meaning through mere longstanding or unchallenged practice, even when it is memorialized in guidance or regulation.  That immigration judges and successive White House administrations never parsed out the law with great exactitude, for example, should not bind the hands of a federal judge in carrying out his or her interpretive role, especially when a robust text-based interpretation forecloses the received Executive Branch understanding.

Rieth-Riley Construction Co. v. Trustees, No. 25-1823 (6th Cir. Apr. 3, 2026)

Returning to the Sixth Circuit, there is a passing reference to Loper Bright in Judge Hermandorfer’s concurrence in Rieth-Riley Construction Co.,a case involving claims that several union trustees violated their fiduciary duties of loyalty and prudence under the Employee Retirement Income Security Act (“ERISA”) when administering a fringe-fund account established as part of a collective bargaining agreement.  The district court dismissed the claims brought by the plaintiff construction company, concluding they were preempted by the “Garmon doctrine,” which requires state and federal courts to “defer to the exclusive competence of the [NLRB]” whenever the National Labor Relations Act (“NLRA”) is implicated.  The Sixth Circuit affirmed and explained that the ERISA claims at hand were arguably subject to the NLRA—and thus the NLRB’s jurisdiction—and no exception to the Garmon doctrine applied.

In her concurrence, Judge Hermandorfer called into question the durability of Garmon preemption.  As an initial matter, she questioned if it could be squared with 28 U.S.C. § 1331’s conferral of original jurisdiction on federal courts to hear claims arising under federal law.  And despite being a supposed preemption doctrine, she explained that Garmon instead tends to operate as a jurisdictional bar, even when there might only be an “arguable” connection between any given federal claim and the NLRA.  That relatively low bar seems in conflict with the otherwise high bar that usually applies when considering whether Congress has sought to deprive a court of jurisdiction.  Finally, as a closing volley, Judge Hermandorfer suggested Garmon rests on “shaky footing” given the Supreme Court’s holding in Loper Bright:

Garmon rested in large part on respecting the Board’s primacy over resolving labor-law disputes.  Under Loper Bright Enterprises v. Raimondo, however, “courts must exercise independent judgment in determining the meaning of statutory provisions.” . . .  So applying Garmon to shunt statutory interpretation questions from courts to the Board might not withstand Loper Bright scrutiny.  Nor is it clear that Garmon could cover labor-law disputes mirroring “common law” claims that are “legal in nature”—which the Constitution preserves for Article III courts and juries, not agencies’ in-house proceedings.  SEC v. Jarkesy, 603 U.S. 109, 122 (2024) (citation omitted)[.]

At the least, Judge Hermandorfer’s opinion is reminder that it remains an open question whether and when Loper Bright, as well as other recent decisions like Jarkesy that signal a paradigm shift in general administrative law, will impact jurisprudence in more technical or distinct areas of the law, such as labor law or the administration of the NLRA.  (An issue we have mentioned on Recasting Regulations at various points, including here and here.)

Secretary of Labor v. KC Transport, Inc., No. 22-1071 (D.C. Cir. Apr. 17, 2026)

Finally, the D.C. Circuit.  In addition to presenting a fascinating justiciability question, KC Transport involved the proper interpretation of the Mine Act and whether a maintenance facility for trucks providing hauling services to mining companies could itself count as a “mine” subject to the Federal Mine Safety and Health Review Commission’s regulatory jurisdiction.  The Act, for reference, defines “mine” quite expansively to include “facilities” and other things “used in, or to be used in, or resulting from,” mining activity.

The case first reached the circuit prior to the Supreme Court’s decision in Loper Bright.  During that first round, applying Chevron, the court determined the term “mine” was ambiguous.  But it refused to defer to the Secretary of Labor, noting the agency’s position had “failed to grapple with several textual clues undermining [its] position.”  The matter was instead remanded for reconsideration.  In the interim, the trucking company filed a petition for writ of certiorari.  After Loper Bright was decided, the Supreme Court granted the company’s petition, vacated the D.C. Circuit’s judgment, and remanded in light of the demise of Chevron.

Now, on remand, the Circuit has held the Act’s definition of “mine” does, in fact, include the trucking facility.  This is a curious outcome.  Whereas the same panel was previously unwilling to countenance the agency’s broad interpretation—even going so far as to reference “textual clues undermining” that position—it has determined the best meaning of the statute is exactly the view doubted under Chevron Step Two.  Although disclaiming any attempt to define the outer limits of the Act’s reach, the Circuit concluded the relevant sub-definition of “mine” should be read in light of the “overall statutory scheme,” as well as a functional limit that attends to the Act’s goal of “protecting persons presently engaged in mining activities.”  Thus, a “mine” includes anything “necessarily connected with the use and operation of extracting, milling, or processing coal and other minerals.”  Judge Walker, writing in dissent, argued instead that “mine” should be read more narrowly to entail geographical limits that restrict the definition to the actual area of extraction or other adjacent sites or things, and not to a truck repair shop located away from any mine or mineral processing facility.

It is worth exploring the lengthy KC Transport opinion to appreciate the richness of this interpretive dispute.  But stepping back from the details of that fight, the broader take-away, as explained by Hyland Hunt over at Notice & Comment, is two-fold.  On the one hand, “Loper Bright makes it harder if not impossible to get a remand for the agency’s failure to do its homework (on statutory questions).”  But on the other, the decision “may not always cut in pro-agency-challenger ways.”  Loper Bright is not about prejudicing courts in favor of deregulatory outcomes—it is about reorienting the judiciary to take seriously its role as the final interpretive authority on legal questions.

Ryan P. Mulvey is Senior Policy Counsel at Americans for Prosperity Foundation.  In his role at Cause of Action Institute, Ryan has served as lead counsel on Loper Bright Enterprises v. Raimondo since the initiation of the case.