Goodbye Agency Deference, Hello Judicial “Independent Judgment”:

So What Does That Mean to Our Civil Cases?

In Friday’s opinion for the twin cases of Loper Bright Enterprises v. Raimondo, and Relentless, Inc. v. Department of Commerce, the Supreme Court overturned its 40 year practice of deferring to the judgment of federal administrative agency determinations.  Known as Chevron deference because of the 1984 case that established the doctrine,  the previous practice instructed courts to defer to, and effectively trust the accuracy of,  decisions made by administrative agencies and not second guess the outcomes if individuals later brought lawsuits in federal courts.  But as Chief Justice Roberts made clear on Friday, courts must stick with their “solemn duty” to “exercise their independent judgment” on whether agency decisions follow the relevant statutes as Congress intended.  That sounds great, potentially – but what does it mean? And how does it affect our cases and clients?

As to our Civil Litigation lawsuits that are already active, a few things:

  • Reframing the Argument:  The conversation now shouldn’t stop with the government’s claim that the agencies already decided the plaintiff’s claims.  The lawsuits should continue, and even go to the fact discovery stage, so the courts can apply that “independent judgment” with more facts available.
  • Travel Troubles: Easier to Raise Complaints? In our cases challenging treatment while traveling, filed after the required DHS TRIP process, the most common holding by that agency that it “can neither confirm nor deny” the status of the person on any watchlist should also not end the discussion anymore.  This one gets trickier though, since those cases also claim “national security” prevents the agency from saying anything more—and Friday’s opinion doesn’t directly speak to that.  We do expect to see—and be able to bring—more challenges to that reasoning as well, since the courts get to show independent analysis again.  We just don’t know yet how far that can go, at least at first. We predict it means at least a few more levels of sworn statements, with more details, from government officials.  And that’s a start.
  • Employment Discrimination: Employment discrimination cases never really have totally deferred to agency decisions by the EEOC, so we don’t see that being much different.  But to the extent the courts may want to question the EEOC’s regulations—considered by some courts to be “decisions” of the agencies entitled to that now-dead deference—this gets trickier.  Still, recent Supreme Court cases have been pretty favorable to employees, like Groff (requiring employers to accommodate religious practices even if that affects other employees) and this year’s Muldrow (lowering the standard for what counts as an “adverse employment action” that gives plaintiffs a right to complain and bring a lawsuit).  So we don’t see many ultimate problems for our cases challenging employment discrimination or the failure to accommodate reasonable requests based on religious practices.  The reasoning may just take a different road that doesn’t rely on agency regulations.
  • Inmate Accommodations Challenges:  Inmates challenging a failure to provide religious accommodations and religious materials stand to see a big benefit too.  No more can the Bureau of Prisons or state agency equivalents simply state that the requested accommodation is too much of a burden—they’ll have to actually prove it.  This area may also run into obstacles when facilities claim “security concerns” prohibit granting the accommodation, but prisons have always had to explain how that connects to the specific inmate and the accommodation requested.  For example, if other inmates are allowed to gather in an open space at any other time, inmates who want to pray together should now be allowed to do that—as long as they don’t have specific histories that show violence in group settings or any other directly related threat.  And that’ll be hard to show for times of prayer, we predict.

These are just a few areas that directly impact our Civil Litigation clients’ cases – there are many more potential ripples.  And while “judicial independent judgment” sounds scary in the hands of a biased trial court level judge, we expect and optimistically hope that won’t be as much of a problem once we use the appeals process and get at least three appellate judges looking at the facts.  And we always appeal, when we think there’s a good reason, so we plan to keep using that tool!

We’ll keep you updated on how this plays out and how we see differences now that agencies don’t get to be the final decision-makers.  That’s actually what the TSA calls its last stop in challenges to people being placed on the No Fly list – the “Final Decision Maker.” Maybe they need a new name for that job now!