Talk:Loper Bright Enterprises v. Raimondo

summary of case

There is no summary of the case in the first paragraph. It is also followed by an long discussion of the prescedent.

It should be clear what the case was about in broad lines at the top. Bquast (talk) 12:27, 30 June 2024 (UTC)

in fact, the substance of the case is not discussed at all in the entire article Bquast (talk) 12:30, 30 June 2024 (UTC)

The background section discusses the specific case regarding the fishing boat stuff. Masem (t) 13:03, 30 June 2024 (UTC)

Plantiff created for the purpose of bringing the lawsuit?

Retired DC circuit court judge David Tatel said on Fresh Air that the company Loper Bright Enterprises was created for the purpose of bringing this lawsuit. Can that be confirmed? -- Beland (talk) 19:21, 3 July 2024 (UTC)

TL; DR: Judge Tatel here is likely referring to another case, Corner Post, Inc. v. Board of Governors of the Federal Reserve System. Even so, it is (in my opinion) unlikely that Corner Post, the petitioner in the case, was "created for the purpose of" bringing the lawsuit.

Long version:

I don't believe this is correct, in my opinion. In its original civil complaint, Loper Bright Enterprises is described as "a New Jersey corporation founded in 1977." So what gives?

The relevant dialogue from the interview is as follows:

TATEL: Well, Terry, that's a really good question, because in Chevron, the court, the majority, assured us - assured us in express terms - that this wouldn't affect any previously decided cases, but in a decision issued Monday of this week, it ruled, contrary to everything it said before, that an agency regulation - it used to be that an agency regulation could only be challenged within a certain number of years of when it became final. The court earlier this week said that's no longer true. It can be challenged by newly created parties forever, so nothing now is final, and it means that if a newly created entity, a new corporation that didn't exist at the time of the regulation, challenges a regulation, it will now be reviewed by the courts without Chevron deference, so basically, technically, everything that - every decision that was issued before last week is now in jeopardy.
GROSS: I imagine, theoretically, you can start a company just to challenge regulatory decisions.
TATEL: In fact, that's exactly what happened in the case earlier this week.
GROSS: Oh, really?
TATEL: That's exactly what happened. An entity was created for that very purpose, and the court accepted that and ruled it could challenge a regulation that my court had sustained - in fact, I wrote the opinion - 10 years ago, and the Supreme Court denied cert. We applied Chevron deference. Now, in that case, it will be adjudicated by the courts - this time, a different court - without Chevron deference - could come out the other way now.

— NPR Interview, July 3, 2024 (boldness added).

The Loper Bright case was decided on June 28, 2024, a Friday. The interview with Judge Tatel was recorded on July 3, a Wednesday. So I believe that the Judge's reference to "a decision issued Monday of this week" is alluding to Corner Post, Inc. v. Board of Governors of the Federal Reserve System, a decision released on the Monday of that week, July 1. In Corner Post, the Court addressed the question of when litigants could bring an APA claim against an agency, which I believe would seem to fit with Judge Tatel's comment regarding "[challenges] by newly created parties forever".

Regarding Judge Tatel's opinion from ten years prior, I believe he did sit on a panel of the D.C. Circuit which decided (in an opinion he authored), relying on Chevron, "that the Board’s rules generally rest on reasonable constructions of the statute,” NACS v. Board of Governors of FRS, 746 F. 3d 474, 477 (2014). This opinion was mentioned in the Corner Post decision.

So what about Corner Post? Well...

Now consider the facts of this challenge. In the majority’s telling, this is about a single “truckstop and convenience store located in Watford City, North Dakota.” [Majority Opinion], at 1. Not quite. Rather, two large trade groups initially filed this action in 2021—a full decade after the Federal Reserve Board finalized the debit-card-fee regulations at issue. Those groups were the North Dakota Petroleum Marketers Association, a “trade association that has existed since the mid-1950s,” and the North Dakota Retail Association, another trade group. App. to Pet. for Cert. 53. Corner Post, which had only opened its doors in 2018, was not a party to the trade groups’ initial complaint. The Government moved to dismiss the pleading, invoking §2401(a)’s 6-year statute of limitations. In response, the trade groups sought leave to amend. It was only then that Corner Post was added as a plaintiff. And, importantly, other than the addition of Corner Post, the trade groups’ complaint remained practically identical to the untimely one they had filed before. Other than a few changes of phrasing and some newly available 2019 data, the amended complaint alleged the same facts and sought the same relief as the original pleading. It also included the exact same legal claims—verbatim. The only material change to the amended complaint was the addition of Corner Post. Thus, even before I analyze the statute of limitations arguments, one can see that this case is the poster child for the type of manipulation that the majority now invites— new groups being brought in (or created) just to do an end run around the statute of limitations.1 To repeat: The claims in Corner Post’s lawsuit were not new or in any way distinct (even in wording) from the pre-existing and untimely claims of the trade organizations that had been around for decades.

— Corner Post, 603 U.S. ___, ___-___ (2024) (Jackson, J., dissenting).

In its amended complaint, Corner Post is described as a "truck stop and convenience store located in Watford City, North Dakota. It was incorporated on June 26, 2017 and opened for business in March 2018." So it's my opinion that Corner Post is in fact a genuine gas station, which later became a party to this litigation. So I disagree with Judge Tatel's characterization, insofar as it describes Corner Post as being "created for the purpose of bringing this lawsuit".

Hope this helps! Glad Tidings from New York (talk) 18:08, 24 July 2024 (UTC)

Excellent research! Many thanks for diving into that. -- Beland (talk) 18:24, 24 July 2024 (UTC)

law profs' reactions

Adrian Vermeule and Cass Sunstein have both reacted to Loper Bright with interesting analyses suggesting the likely implications of the court's holding, the former on a Substack page and the latter in an unpublished article. I made an edit briefly quoting these; it was removed. I understand self-published material is generally disfavored, so fair enough. But WP:USESPS suggests it is permissible to use in cases where "[t]he author is an established expert on the topic of the article whose work in the relevant field has previously been published by reliable third-party publications." As any J.D. will testify, Vermeule (whose views on other matters may be crazy but whose titanic stature in administrative law is undeniable) and Sunstein obviously meet this criterion; look at, say, Manning and Stephenson's "Legislation and Regulation" casebook and you'll find dozens of citations to each on the topics of executive power broadly and the interpretive authority of agencies specifically. These reactions would enlighten readers as to actual legal experts' views on the matter and, in my view, deserve inclusion. Seventysixtrombones (talk) 04:13, 13 August 2024 (UTC)

I was the one that removed those, but I think you are right that they both are described in other sources as experts in the field of admin law, and the dissent uses a joint statement from both (identifed here). So you may go ahead and readd it, — Masem (t) 04:59, 13 August 2024 (UTC)

Thanks! Done. Seventysixtrombones (talk) 03:45, 14 August 2024 (UTC)