The Supreme Court’s decision in Loper Bright continues to reverberate across the legal landscape.  This month’s newsletter highlights three major decisions applying Loper Bright—Corner Post on remand, media ownership rules, and EEOC regulations.

Corner Post Prevails on Remand in Debit Fee Challenge

AFP Foundation’s Michael Pepson on how the district court ruled in favor of Corner Post, applying Loper Bright to strike down the Federal Reserve’s 2011 debit-fee regulation:

Last week, on remand the district court granted Corner Post’s summary judgment motion, applying Loper Bright and concluding that Regulation II was beyond the agency’s power and thus unlawful. The result may have been different under Chevron. As the district court put it, “[w]hen this litigation began roughly fourteen years ago, the Parties were subject to the mire of Chevron deference.” Indeed, as the district court observed, the D.C. Circuit found in related litigation that the Fed’s debit-fee regulation rested on a “reasonable” interpretation of the statute that passed muster under Chevron.

Eighth Circuit Applies Loper Bright in FCC Review Dispute

In Zimmer Radio v. FCC, the Eighth Circuit applied Loper Bright to scrutinize the FCC’s quadrennial review of media ownership rules. The court reaffirmed that while agencies may exercise discretion, it is the judiciary’s role to define statutory limits and ensure fidelity to congressional intent. Michael Pepson writes:

In rejecting the petitioners’ argument that the FCC’s 2023 Order’s narrow definition of “market” was inconsistent with Section 202(h), the Eighth Circuit read Loper Bright to, on the one hand, require courts to rigorously police the boundaries of an agency’s statutory authority and independently decide what the law is. But the Court also cited Loper Bright for the proposition that Congress often writes laws “intentionally [to] provide agencies with discretion.” And as Loper Bright teaches, “[w]hen the best reading of a statute is that it delegates discretionary authority to an agency,” the APA requires courts “to independently interpret the statute and effectuate the will of Congress subject to constitutional limits.”  

EEOC “Right to Sue” Notices Invalidated

A federal court in New York relied on Loper Bright to invalidate an EEOC regulation that allowed premature “right to sue” notices. The ruling underscores that agencies must operate within clear statutory boundaries and cannot bypass procedural safeguards. AFP Foundation’s Lee Steven on the case:

In Prichard v. Long Island University, a U.S. District Court for the Eastern District of New York relied on Loper Bright v. Raimondo to invalidate an Equal Employment Opportunity Commission (EEOC) regulation that had allowed the agency to issue “right to sue” notices before 180 days had passed.  The decision made clear that EEOC regulations should not be given Chevron deference and that courts must exercise independent analysis in interpreting and applying EEOC regulations.

…

Notably, in rejecting the plaintiff’s counter-argument, the court relied heavily on Loper Bright:

“[Plaintiff’s] assertion that deference is due the EEOC’s interpretation of the statute effectively urges this court to operate in a parallel universe in which Loper Bright had been decided the other way. No case that [Plaintiff] cites (or that the Court has identified) sided with the EEOC on textual grounds without according deference: they either deferred to the agency pre-Loper Bright, or relied primarily on policy considerations. [Citations omitted]  Neither approach now suffices to overcome the plain text of the statute.”

Quick Hits

• Podcast: Is the Administrative State Still Alive?

  • Bloomberg Law’s UnCommon Law podcast explores the fallout from Loper Bright.

• Susan Dudley in Forbes: Congress Must Step Up

  • Former OIRA Administrator Susan Dudley outlines how Congress can reclaim its constitutional role in regulatory oversight after Loper Bright.