Welcome back. Two more cases today to review from the Sixth Circuit, and we’ll jump right in with the court’s latest attempt to address Loper Bright—this time in the immigration context.

Moctezuma-Reyes v. Garland

Here’s a key question after Loper Bright: Whether—and to what extent—courts should defer to agency legal interpretations in a post-Chevron world. The Sixth Circuit gave its answer in an immigration case challenging the Board of Immigration Appeals’ denial of an applicant’s claim. The BIA acts as the appellate panel to rulings made by an immigration judge in removal proceedings. And before the Supreme Court tossed out Chevron in Loper Bright, courts traditionally deferred to the BIA’s interpretations of immigration statutes. But what now?

The statutory question was whether the applicant would face “exceptional and extremely unusual hardship” in his home country. The BIA interpreted the statute and then ruled against the applicant. The Sixth Circuit considered how much deference—if any—it owed the BIA’s ruling.

That was not so simple. As the Sixth Circuit explained, Loper Bright did not end all deference to agency legal interpretations: “[T]he Supreme Court has instructed us that occasionally the best reading of a particular statute will reveal that Congress expressly and explicitly delegated discretion to the agency—and that we must defer to the agency’s exercise of its discretion.” So, the court said, even under Loper Bright there are times when courts must defer to agencies.

When? It depends on the words of the statute. Broad language—the sort found in statutes allowing an agency to issue “appropriate” or “reasonable” regulations—supports some deference, the panel ruled. But that’s true only if the statute also includes “express language conferring discretion on the agency,” because “[b]road language alone” cannot “trigger[] deference.” Loper Bright requires both “broad language” and “words that expressly empower the agency to exercise judgment.”

The immigration statutes had none of these features, so the court gave the BIA no deference. That marks a stark change in court review of BIA interpretations of the immigration statutes, an area where courts had long been deferential to the BIA.  

Judge Stranch concurred but wrote that courts should be cognizant of Loper Bright’s admonition that statutory stare decisis remains relevant without Chevron. Circuit court interpretations of statutes made under the Chevron regime, she noted, remain good law even though Chevron itself does not. Judge Stranch agreed that the applicant did not quality for protection from removal, but she cautioned the court to keep precedent in mind.

Fortin v. Commissioner of Social Security  

And finally, we travel to the Social Security Administration. In Fortin v. Commissioner of Social Security, the court faced a long-lingering question: just what may acting officials do in the executive branch?

Some background: In Lucia v. SEC, the Supreme Court said that ALJs amount to officers of the United States. That comes with consequences. Principal officers must be appointed by the President and confirmed by the Senate; inferior officers can be appointed by heads of departments or courts of law (as well as the President). After Lucia, the SSA ratified the appointment of all ALJs. That way, the judges faced no Appointments Clause violation; they had been appointed and ratified by the “head” of a department.

Not quite. After all, the “head” of the Social Security Administration—a principal officer—who ratified the ALJ appointments was never Senate-confirmed. And that’s a principal-officer requirement.

At least usually. Sometimes, though, openings arise in principal offices that need filling. So the Vacancies Reform Act contemplates “acting” officials who, the Sixth Circuit explained, are “inferior officers . . . who temporarily hold the office of a [principal] officer when a vacancy arises and the President and Senate cannot promptly agree on a replacement” (quoting N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 292 (2017)). The Vacancies Act allows the President to choose someone to fill a principal office without Senate confirmation on a temporary basis (up to 210 days). But if a person is “not properly serving” under the Vacancies Act, their actions have “no force or effect.”

Now the question: Was the SSA Commissioner “properly serving” when she ratified ALJ appointments to satisfy Lucia? The official at issue—Commissioner Berryhill—served two separate stints as “acting” Commissioner. She was never officially nominated by the President or confirmed by the Senate. She was the Deputy Commissioner for Operations in the SSA, dubbed to take over the acting Commissioner status if her superiors resigned under an order from President Obama (which occurred, triggering her move to Commissioner).

But after 210 days, she could no longer act as Commissioner and she no longer did. Until President Trump nominated Andrew Saul to head SSA. And with a new nomination pending, the Vacancies Act kicked in a second time. So Berryhill returned to acting Commissioner status. And during this second go-around, the Supreme Court decided Lucia and Berryhill ratified prior appointments of ALJs to comply with the Court’s ruling.

But Berryhill’s actions satisfied Lucia only if she had lawfully been the acting Commissioner. After all, she had already served the 210 days. So was the second time lawful?

Yes, says the Sixth Circuit.

First, the court held that the order detailing the SSA line of succession issued by President Obama “carried over into the Trump administration.” Noting the “staggering implications” of the appellant’s arguments—and employing the elephants-in-mouseholes canon—the court concluded that the statute does not require each new President to reissue succession orders.

Second, the panel rejected the argument that the Appointments Clause requires acting commissioners to be appointed by the President. The reason was simple: “[A]cting officials . . . are not appointed.” Presidents “direct” individuals to act as an officer; they do not constitutionally “appoint” anyone.

Third, the court agreed with the Third, Fourth, Fifth, and Eighth Circuits that Berryhill could return to serve a second term as an acting officer under the Vacancies Reform Act. Again, the reasoning was straightforward: Berryhill served under two distinct subsections of the statute. The first time for 210 days, and the second during the nomination of an officer. Berryhill did both separately, so there was no violation.

Finally, the court held that Berryhill’s post-Lucia ratification of ALJs was valid because “acting officers possess the permanent position’s full powers.”

All told, the Sixth Circuit agreed with its sisters that Berryhill properly served.  Berryhill’s post-Lucia ratification of ALJs has survived.

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That’s it for this week’s installments. Back to regularly scheduled programming now that your author’s leave winds down. See you next time.

John Kerkhoff is a senior managing associate at Benesch, Friedlander, Coplan & Aronoff where he practices in the litigation, administrative law, and appellate law practice groups. You can reach him at jkerkhoff@beneschlaw.com.