Supreme Court Accepts Cert in Deference Case and Remands to D.C. Circuit for Consideration of Loper Bright Chevron Overruling (7/3/24)

 By order dated July 2, 2024, here, the Court ordered (p. 3):

 23-413 LISSACK, MICHAEL V. CIR
 The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the District of Columbia Circuit for further consideration in light of Loper Bright Enterprises v. Raimondo, 603 U. S. ___ (2024),

Loper Bright is the opinion where the Court overruled Chevron deference. See The Supreme Court Pronounces the Demise of Deference (Federal Tax Procedure Blog 6/29/24; 7/2/24), here. The prior Court of Appeals opinion in Lissack is Lissack v. Commissioner, 68 F.4th 1312, 1324, 1327 (D.C. Cir. 2023), here. The Lissack petition for writ of certiorari, here, had one of its 2 questions presented the following:

2. Whether the Court should overrule Chevron or at least clarify that where Congress acts to remove discretion from an agency, regulations promulgated thereunder should not be deferred to.

That question was essentially the same as addressed in Loper Bright, hence the acceptance of cert and remand. (Note in this regard that the D.C. Circuit opinion in Lissack is cited in Justice Kagan’s dissenting opinion in Loper Bright (Kagan dissenting Slip Op. 26), but without the mention that petition for certiorari was pending:

The majority says differently, because this Court has ignored Chevron lately; all that is left of the decision is a “decaying husk with bold pretensions.” Ante, at 33. Tell that to the D. C. Circuit, the court that reviews a large share of agency interpretations, where Chevron remains alive and well. See, e.g., Lissack v. Commissioner, 68 F. 4th 1312, 1321–1322 (2023); Solar Energy Industries Assn. v. FERC, 59 F. 4th 1287, 1291–1294 (2023).

So, we may have relatively soon a Court of Appeals opinion in Lissack that may explore some of the parameters of Chevron’s overruling in Loper Bright. In the latter regard, I assume that there are many Court of Appeals cases pending where Loper Bright may be applied and, at least where time for rehearing has not expired, rehearings may be sought in cases where the Court of Appeals relied upon deference in its resolution of the cases.

Also, I did not previously write on the Lissack Court of Appeals decision, but did write on the Chevron aspects of the Lissack Tax Court opinion, 157 T.C. 63 (2021). Tax Court Holds that Collected Proceeds for Whistleblower Awards under § 7623(b) Do Not Include Unrelated Collections (Federal Tax Procedure Blog 8/18/21; 8/19/21), here; and The Impact of Chevron Deference is Exaggerated (Federal Tax Procedure Blog 8/19/21; 8/21/21), here.