Supreme Court Conference Preview: Two Loper Bright Cert Petitions, Plus a Loper Relist

Tomorrow, the Supreme Court will consider for the first time two cert petitions at its conference presenting Loper Bright-related questions. A third, more tangentially Loper Bright-related petition will return as a relist.

United National Foods is Back

The petition in United National Foods, Inc. v. NLRB raises at least two Loper Bright implementation questions:

Whether Loper Bright Enterprises v. Raimondo . . .  permits a court to (a) accept an agency’s reasonable construction of a statute without exhausting all relevant tools to find the single, best meaning or (b) give precedential weight to decisions affording deference under Chevron . . . when the court evaluates different agency action.

By way of background, this case returns to the Court for a second time after United National Foods’s original cert petition was GVR’d in light of Loper Bright.  In an earlier decision, a divided Fifth Circuit panel relied on Chevron deference to uphold the authority of the NLRB’s General Counsel to unilaterally dismiss an administrative complaint after a party has filed for summary judgment, concluding the National Labor Relations Act was ambiguous on that point. On remand from the Supreme Court the same divided panel ruled once more in favor of the agency. Judge Oldham again dissented, suggesting “‘further consideration’ was an empty formality. . . .  Same reasoning, same result, different day.”  In his view, “that result conflict[s] with Loper Bright and the Supreme Court’s GVR order[.]” Should the Court grant cert, it will also have the opportunity to clarify that Loper Bright applies with full force to the NLRB’s interpretation of the NLRA, putting that arguably open question to rest.

Poore Over This Sentencing Commission Case

The petition in Poore v. United States likewise raises an important question about the applicability of the principles announced in Loper Bright:  Whether the limits on agency deference announced in Kisor v. Wilkie and Loper Bright constrain the deference courts may accord the Sentencing Commission’s interpretation of its own rules via commentary. The New Civil Liberties Alliance filed an amicus brief in support of Mr. Poore’s petition, underscoring the importance of the question. Recasting Regulations previously covered the Poore petition in greater detail here.

Loper Relist Watch

The Court has also relisted the petition in Tennessee v. Kennedy. Although the questions presented do not directly implicate Loper Bright, the decision below does insofar as it addresses the broader question of the scope of statutory stare decisis that applies to Chevron-era precedent after Loper Bright. That is, the decision below raises the question whether statutory stare decisis travels with the specific agency action at issue or with the agency’s interpretation of the statute. Recasting Regulations has covered this case in greater detail here.

Mr. Pepson is regulatory counsel at Americans for Prosperity Foundation.