Notice & Comment

Sixth Circuit Review

Welcome to Sixth Circuit Reviewed! This is your monthly recap of administrative law from—as some like to call it—“America’s Court.” (Yes, people call it that. I think.)   

Often overlooked in the adlaw world by the towering D.C. Circuit (and, apparently, the Ninth Circuit), the Sixth has its fair share of high-profile administrative law decisions: OSHA challengesprivate nondelegationvaccine mandates, and more. It’s enough that the renowned pages of this blog finally make room for Ohio, Michigan, Kentucky, and Tennessee. 

Our first installment comes with only one case—but with lots to discuss. 

Indeed, Tennessee v. Dep’t of Education presents a long-pondered question in admin law circles: Just when must an agency proceed through notice-and-comment rulemaking? 

That, it turns out, is a thorny question. Tennessee sheds light on that issue. 

Start with the facts and procedural background. In mid-2021, in the wake of the Supreme Court’s Bostock decision, the Department of Education announced that it would “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identify in education programs and activities that receive Federal financial assistance from the Department.” Op. at 5 (quoting 86 Fed. Reg. 32637, 32639 (June 22, 2021)). A “Dear Educator” letter two days later took a similar approach, as did a “Fact Sheet” attached to the letter. 

That clashed with the Department’s longstanding construction of Title IX that “sex in Title IX” refers to “biological sex, male or female.” Op. at 5 (quoting U.S. Dep’t of Educ., Memorandum Re: Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) at 1 (Jan. 8, 2021) (rescinded in 2021). None of these documents followed the notice-and-comment rulemaking path laid out in the APA. That would have required the Department to consider public feedback and subjected any final rule to arbitrary and capricious review. 

So, shortly after the Department took its position, twenty states sued, arguing that the documents violated Title IX, the Constitution, and the Administrative Procedure Act. 

The district court granted a preliminary injunction in favor of the plaintiff states, and the Department appealed. The lower court rested its ruling on APA grounds: Namely, it held, the documents must go through notice-and-comment rulemaking because they amounted to legislative rules. 

So, for our purposes, the relevant question centered on just what were the documents the Department issued? Legislative rules? Or interpretive guidance? 

(Before reaching those issues it’s worth adding that the Sixth Circuit—via Judge Nalbandian—held that the States had standing to pursue their claims and that the documents constituted “final” agency action—issues that themselves warrant more discussion). 

That’s important. After all, as the Court noted, the APA “divides agency action . . . into three boxes: legislative rules, interpretive rules, and general statements of policy.” Op. at 34. Legislative rules must go through notice-and-comment rulemaking, and the Department’s documents did not. Guidance documents, on the other hand, need not traverse the rigid APA requirements. 

So what were the Department’s documents? Legislative rules, so said Judge Nalbandian. As he explained, legislative rules are those that carry out a congressional delegation, impose a new duty on a regulated party, or change the legal status of a regulated entity. Interpretive rules, though, simply clarify and inform the public of an agency’s views, but “they do not have the force and effect of law.” Op. at 35. 

The Court offered three reasons why the documents constituted “legislative rules” and thus go through notice-and-comment rulemaking (and since the rules did not navigate the APA procedure, they must also be set aside). 

  1. The rules “carr[ied] out an express delegation of authority from Congress” under Title IX. Op. at 36. 
  2. “The Documents impose new duties on the States” because before the new documents “the States had no obligation to investigate” claims of discrimination against sexual orientation or gender identity.” Op. at 36. Thus, they had the force of law that often make legislative rules, well, legislative. 
  3. The Fact Sheet promulgated a new interpretation of Title IX that clashed with the Department’s prior views, thus making the documents “necessarily legislative.” Op. at 38. 

Since the rules were legislative and did not receive notice-and-comment treatment, the court ruled in favor of plaintiffs before addressing the remaining preliminary injunction factors—irreparable harm, the public interest, and balance of equities—each of which also supported the district court’s injunction. 

The Court did not address or grapple with the underlying merits of the case. Instead, it merely said that (1) the states have standing, (2) the documents were final agency action, and (3) the documents amounted to legislative rules subject to notice-and-comment rulemaking. Judge Boggs dissented on standing grounds. 

We await to see if the Department will seek en banc review or possibly a petition to the Supreme Court. We also eagerly await more adlaw decision from the Sixth Circuit. (If you know of any I have missed or come across new opinions in the coming days, please send to me). 

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

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