Administrative Law Developments in Judicial Review 2021

• Pages: 29-32
• Date: 01 January 2022
• Published date: 01 January 2022
• Author: Linda D. Jellum
• Subject Matter: Administrative & Public Law

WINTER 2022 ADMINISTRATIVE & REGULATORY LAW NEWS29

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Linda D. Jellum*

Introduction

This ar ticle exam ines the U.S.

Supreme Court’s major deci sions

from 2021 dis cussing jud icial

review of agenc y action. There were

few opinions th is year, and

none were earth shatter ing.

The biggest t akeaway is that

the government m ay have

the power to waive Chevro n.

Chevron

The United State s

Supreme Court refer red

to Chevron, U.S.A., Inc. v.

Natural Resources D efense

Council, Inc., 467 U.S. 837 (1984), in

three case s during 2021.

First, i n Salinas v. United States

R.R. Retirement Bd., 141 S. Ct. 691

(2021), the Cour t refused to apply

Chevron des pite potential ly ambiguous

statutor y language. In th is case, a

former rai lroad employee who was

injured on the job applie d for benefits

under the Rai lroad Retirement Act

(RR A). The Railroad Reti rement

Board (Boa rd) denied his fi rst three

applications but g ranted the fourth.

The employee sought rec onsiderat ion

of the star t date for his bene fits. T he

Board denied t he request as unt imely.

The Fifth Ci rcuit dismissed for l ack

of jurisd iction, holdi ng that federa l

courts have no power to rev iew the

Board’s refus al to reopen a prior

benefits determi nation.

The issue for the Supreme Cou rt

was whether the Boa rd’s prior

benefit s determi nations were subject

to judicial r eview. Writing for the

majority, Justice S otomayor, joined

by Chief Justice Rober ts and Justices

Breyer, Kagan , and Kavanau gh, held

that they were. The R RA provides

for judicial rev iew of “any

fin al decision of t he Board.”

Justice Sotomayor rea soned

that the Board ’s decision f it

squarely wit hin the defin i-

tion of a fi nal agenc y action.

Further, she concluded t hat

ambigu ity must be resolved

in favor of the strong

presumption f avoring judi-

cial rev iew of admin istrative

action. Here, the Boa rd had fai led to

overcome this stron g presumption.

Final ly, she distin guished a pr ior case

in which the Cour t had deferred

under Chevron to a n agency’s inter-

pretation of sim ilar, but not identical,

langu age in a Medic aid reimbur se-

ment statute. See Your Home Visiti ng

Nurse Ser vices, Inc. v. Shala la, 525

U. S. 449 (1999). The lang uage at

issue in Salina s was broader tha n the

langu age in the pr ior case, but Justice

Sotomayor stil l found the agency

interpret ation was not deser ving

of Chevron deference. And even i f

there were ambig uity, deference was

inappropri ate because “the scope of

judicial rev iew is ‘hardly the ki nd of

question that t he Court presu mes that

Congress i mplicitly delegated to an

agency.’” Ultimately, the Cour t held

that the presu mption in favor of judi-

cial rev iew of admin istrative action

trump s Chevron deference.

Justice Thoma s dissented , joined by

Justices A lito, Gorsuch, a nd Barret t.

He explained t hat the prior case

should have governed the outcome i n

this cas e because the la nguag e in the

two statute s was sufficient ly simi lar to

warra nt the same outcome. He fu rther

concluded that the la nguage in the

statute suppor ted his interpretat ion.

The second case in wh ich the

Court mentioned C hevron, a lbeit in

a footnote, was Johnson v. Guzman

Chavez, 141 S. Ct. 2271 (2021).

Here, aliens who h ad previously be en

ordered removed from the Un ited

States f iled class action petit ions for

writs of h abeas corpu s, challen ging

their detention pu rsuant to rei nstated

removal orders. T hey sought a

declarator y judgment ordering

immi gration of ficials either to relea se

them or provide bond hear ings.

The tria l court entered summa ry

judgment in thei r favor, and the

government appea led. The Fourth

Circuit af firmed. The Supreme Cou rt

granted cer tiorari and reversed .

This was a c ase about conf licting

statutes. T he issue was wh ich of

two statutes applies when a liens are

removed from the United St ates,

reenter without aut horization,

are subject to rein stated orders of

removal, and then se ek withholdi ng

of that removal ba sed on their fear of

persecution. Specif ically, the ques-

tion was which contr ols: 8 U.S.C. §

1231—which authorizes det ention of

an alien who wa s subject to an earlier

detention order, was removed, a nd

LINDA D. JELLUM

*

Elli son Capers Palmer Sr. Pr ofessor of Tax Law, Mercer Universit y School of Law; Visiti ng Professor of Law, Univer sity of Missis sippi School of

Law (Twitter: @ JellumLind a). Many than ks to Douglas C omin, J.D. expected 2 022, for his sig nificant hel p with this ar ticle.