As noted on this blog, last month the D.C. Circuit issued an opinion in Centro de Trabajadores Unidos v. Bessent, which has gotten some attention for describing Loper Bright as “upend[ing] th[e] foundation” for challenges to changes in agency statutory interpretations. But a close examination of the point that the D.C. Circuit made reveals that the decision does not call into question the continued viability of the change-in-position doctrine.

First, some background on the change-in-position doctrine. Although it has percolated in administrative law for decades, including at the Supreme Court, the Court formally coined the term “change-in-position doctrine” in its 2024 decision in Food and Drug Administration v. Wages & White Lion Investments. “Under that doctrine, agencies are free to change their existing policies as long as they provide a reasoned explanation for the change, display awareness that they are changing position, and consider serious reliance interests.” And while an agency generally need not “provide a more detailed justification than what would suffice for a new policy created on a blank slate,” such a justification is required when an agency’s “new policy rests upon factual findings that contradict those which underlay its prior policy.” Governing for Impact (my organization) has written about the doctrine, for those who are curious for more details.

In Centro de Trabajadores Unidos, the D.C. Circuit affirmed the denial of a preliminary injunction against an IRS-ICE memorandum of understanding that enabled disclosure of undocumented taxpayers’ address information to ICE. Writing for the unanimous panel, Judge Edwards first explained that the statute at issue—the Tax Reform Act—unambiguously allowed the IRS to share a taxpayer’s address with another agency, defeating the challengers’ contrary-to-law claim. As to the challengers’ arbitrary-and-capricious claim, which asserted that the IRS changed its position as to the legality of sharing taxpayer information with ICE without adequate explanation, Judge Edwards agreed with the district court that the plaintiffs had not identified a final agency action reviewable under the Administrative Procedure Act.

In ruling against the plaintiffs, Judge Edwards took the opportunity to make a broader point about the change-in-position doctrine in the post-Loper Bright world, where agencies’ interpretations of ambiguous statutes are generally not afforded deference. Judge Edwards held that the Loper Bright framework effectively forecloses a challenge to an agency’s change in statutory interpretation wherever a court concludes that the statute unambiguously supports the agency’s new interpretation. Where the court has independently resolved the interpretive question, and that interpretive question does not yield an implicit or explicit delegation to the agency, there is simply nothing for the agency to explain. The Centro court therefore agreed with the plaintiffs that it would be “a useless formality” to send the case back for a reasoned explanation of a change in position that the statute itself compels.

The court’s holding is narrower than a first reading might suggest. As Judge Edwards notes several times, the point highlighted in Centro de Trabajadores Unidos applies only to the context of statutory interpretation because of the unique way that the change-in-position doctrine emerged in this area during the Chevron era. Centro does not address decisions made by agencies pursuant to their policy discretion, where agencies must still articulate a reasoned decision for any choices they may have made.

Even with respect to statutory interpretation challenges, Centro only applies where the best reading of the statute rules out an explicit or implicit delegation of interpretive discretion to the agency (reflecting Loper Bright’s primary exception to its no-deference rule). Some commentators have noted that the universe of statutes that implicitly delegate such discretion to agencies might be larger than many would expect. So for example, where a statute directs an agency to set “reasonably necessary or appropriate” standards for workplace safety and the agency changes what it deems to meet that definition, the change-in-position doctrine remains in full force: the agency must acknowledge its shift, provide a reasoned explanation for its new position, consider any serious reliance interests, and account for any factual findings that supported its prior position. These are meaningful requirements.

And even in other cases arguably related to statutory interpretation, the change-in-position doctrine imposes independent transition obligations that survive Centro’s analysis. Where an agency has maintained a position long enough to generate serious reliance interests, an agency must “assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns,” to the extent it has discretion to do so. Centro does not suggest that Loper Bright affects those obligations.

Take for example the Supreme Court’s 2020 decision in Department of Homeland Security v. Regents of University of California. There, the Supreme Court rejected DHS’s abrupt ending of the DACA program because, even assuming that the agency was correct that the program had been unlawful, the agency failed to take into account the reliance interests that would be upset by the manner in which the program was to be wound down. The obligations explored in Regents run not just to whether to change a policy, but to how: the Court faulted the agency for not even considering a wind-down that addressed reliance interests, like a phase-out period.

Finally, Centro does not question an agency’s obligation to offer a more detailed justification when a “new policy rests upon factual findings that contradict those which underlay its prior policy.” That matters especially now, when agencies are reversing longstanding positions that were grounded in detailed factual findings. The agency must actually grapple with the prior factual record, not merely assert that circumstances have changed. This requirement has nothing to do with statutory interpretation, and Centro does not touch it.

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The upshot is that the change-in-position doctrine remains a viable tool for litigants, and the Centro decision does very little to upset that state of affairs.

Reed Shaw is a Policy Counsel at Governing for Impact.