Corner Postscript: Implications of the Supreme Court’s Loper-Bright and Corner Post rulings | Zuckerman Spaeder LLP

The total of the Supreme Court rulings in the case Loper-Light AND Corner post open the path to attacking federal regulations issued by agencies (and upheld by courts) many years ago. As Judge Jackson put it in his Corner post opposition: “Any established government regulation on any issue—say, workplace safety, toxic waste, or consumer protection—can be attacked by any new regulated entity within six years of its creation. An entirely new entity can come along and challenge a regulation that is decades old; perhaps even one that is as old as the APA itself. No matter how entrenched, heavily relied on, or central to the functioning of our society the law is, most have declared open season.”¹

While Loper-Light the majority did not go as far as Justice Barrett did in oral argument, suggesting that prior rulings upholding the provisions under Chevron wouldn’t carry old decisions burden, prior precedent may do little to stem the predicted “tsunami of lawsuits.”² Opinion of the President of the Supreme Court for the Court in the case Loper-Light says: “We do not dispute previous cases that were based on Chevron framework. Rulings in these cases that specific agency actions are lawful — including a ruling in the Clean Air Act case Chevron they are still subject to statutory provisions in themselves old decisions despite our change in interpretive methodology. The mere reliance on Chevron cannot constitute a “special justification” for setting aside such a judgment, since the statement that the precedent referred to Chevron is, at best, “merely an argument that the precedent was wrongly decided.” That is not enough to justify setting aside the statutory precedent.”³ But saying that the decision upholding the regulation pursuant to Chevron is not automatically waived on the grounds of “self-reliance” Chevron this does not mean that lawyers cannot and will not challenge such decisions on the basis that without Chevron deference to the agency’s interpretation of the statute would be clearly or blatantly erroneous. Furthermore, old decisions there is a thin shield for regulation that the Supreme Court has not upheld. D.C. Circuit Chevrona decision based on upholding the disputed regulation Corner post would not bind the Eighth Circuit. Avoiding circuit precedent merely becomes an additional factor in deciding where to recruit or create a new entity.⁴

This Corner post the majority offers this assurance: “Given that major regulatory challenges are typically immediate, courts deciding later issues will often be able to rely on binding Supreme Court or circuit precedent. If neither that Court nor the appropriate appellate court decides, the court may look to other circuits for persuasive authority.”⁵ But the previous decision based on Chevron respect may not be a convincing authority in Loper-Light world.

Corner post is significant in itself, even without the possibility of extension Loper-Light back in time, even decades. No court has held that the time to seek vacatur resets for each new entity. In framing the interpretive choice between reading Section 2401(a) as a traditional statute of limitations or as a statute of extinction, Corner post The majority ignored the fundamental difference between suing an immune sovereign and suing an ordinary party. “Repose” is the natural state of an immune sovereign. The statute of limitations that is part of the limited regime for waiving sovereign immunity can be understood as creating an exception to that repose and thus operating differently from the statute of limitations covering private party claims. Moreover, it is not entirely intuitive that the right to a collective remedy—to invalidate the regulation for all—accumulates at different dates for different individual parties. If viewed as a single, indivisible claim, then the “right to action accrues first” for some parties when the agency issues the regulation. But in conjunction with Loper-Light, Corner post may invite trade associations to recruit or create new entities that will have new rights to challenge even the most established provisions in force underChevron standards.

¹ Corner Post, Inc. v. Board of Governors of the Federal Reserve System.USS Ct. No. 22-1008, Separate Opinion of Justice Jackson, p. 21 (July 1, 2024).
² ID. at 23.
³ Loper-Bright Entrance. Raimondo w.USS Ct. No. 22-451, Slip op. on pp. 34-35 (quotes omitted).
⁴ For example, the lead plaintiff in the FDA’s challenge to mifepristone approval, the Alliance for Hippocratic Medicine, was formed shortly after the Supreme Court overturned Roe v. Wade. Although the Alliance’s mailing address is in Tennessee, it was formed as a Texas entity located in the Single Judge Division of the Northern District of Texas. Although the Supreme Court ultimately ruled that the Alliance had no standing to challenge changes to mifepristone administration protocols under Article III, assuming that Article III standards could be met, Corner post could allow a new entity that was aggrieved by the original FDA approval of mifepristone to challenge that decision, even though it was made in 2000. Such an entity could be created in any county, division, or circuit that offers the clearest opportunity for challenge. Similar calculations could be made to allow newly created entities to challenge regulations in circuits that did not uphold them under Chevroneliminating all constraints based on passive decision-making.
⁵ Corner postat 9 p.m.