Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.
Supreme Court briefDec 6, 2022
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NO. 22-451
IN THE
Supreme Court of the United States
LOPER BRIGHT ENTERPRISES, ET AL.,
v.
Petitioners,
GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS
SECRETARY OF COMMERCE, ET AL.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
BRIEF OF AMICUS CURIAE
NEW ENGLAND LEGAL FOUNDATION
IN SUPPORT OF PETITIONERS
Counsel for Amicus Curiae
Benjamin G. Robbins
Counsel of Record
Daniel B. Winslow, President
New England Legal Foundation
333 Washington Street, Suite 850
Boston, MA 02108
(617) 695-3660
brobbins@newenglandlegal.org
December 6, 2022
BATEMAN & SLADE, INC.
STONEHAM, MASSACHUSETTS
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................iii
INTEREST OF AMICUS CURIAE ............................ 1
SUMMARY OF ARGUMENT..................................... 2
ARGUMENT ............................................................... 6
I.
THIS COURT SHOULD GRANT
CERTIORARI TO DECIDE WHETHER
THE MAGNUSON-STEVENS ACT
HAS “SILENTLY” AUTHORIZED THE
NATIONAL MARINE FISHERIES
SERVICE
TO
REQUIRE
POTENTIALLY
ALL
DOMESTIC
COMMERCIAL FISHING VESSELS
TO PAY FOR AT-SEA OBSERVERS. ............. 6
A.
Under Chevron, As Always,
Congress’s Omission Of Any
Textual Reference To
A
Disputed
Agency
Power
Generally Means That Congress
Has Not Delegated That Power
To The Agency. ...................................... 6
B.
Under Chevron, As Always, A
Federal Court Must Decide De
Novo Whether An Administrative
Agency
Has
Exceeded
Its
Statutorily Delegated Powers. ............ 11
II.
C.
Under Chevron, As Always, A
Federal Court Must Enforce The
Plain Language Of A Statute,
Which In This Case Does Not
Authorize NMFS To Require
Potentially All Domestic Fishing
Vessels To Pay For At-Sea
Observers. ............................................ 13
D.
Under Chevron, As Always, A
Federal Court Should Consider
The Statute As A Whole, Which
In This Case Confirms That
Congress Has Not Authorized
NMFS To Require Potentially All
Fishing Vessels To Pay For AtSea Observers. ..................................... 16
CERTIORARI IS ALSO WARRANTED
TO CLARIFY THAT, UNLIKE IN THIS
CASE, THE STATUTORY SILENCE
IN CHEVRON CONCERNED AN
OPEN-ENDED TERM OF ART THAT
CREATED A GAP IN MEANING FOR
THE AGENCY TO FILL. ............................... 19
CONCLUSION .......................................................... 21
ii
TABLE OF AUTHORITIES
CASES
Badgerow v. Walters,
142 S. Ct. 1310 (2022) .......................................... 17
Bostock v. Clayton Cnty., Georgia,
140 S. Ct. 1731 (2020) .................................... 12, 14
Buffington v. McDonough, No. 21-972,
2022 WL 16726027 (U.S. Nov. 7, 2022) ........... 7, 11
Chevron U.S.A., Inc. v. Nat. Res. Def. Council,
467 U.S. 837 (1984) ....................................... passim
City of Arlington, Tex. v. F.C.C.,
569 U.S. 290 (2013) .............................................. 15
E.E.O.C. v. Abercrombie & Fitch Stores, Inc.,
575 U.S. 768 (2015) .............................................. 13
Entergy Corp. v. Riverkeeper, Inc.,
556 U.S. 208 (2009) .................................. 11, 15, 19
Gen. Dynamics Land Sys., Inc. v. Cline,
540 U.S. 581 (2004) .............................................. 14
Kisor v. Wilkie,
139 S. Ct. 2400 (2019) .......................................... 13
Loughrin v. United States,
573 U.S. 351 (2014) .............................................. 17
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ........................................ 10, 12
iii
Marbury v. Madison,
1 Cranch 137 (1803) ............................................. 12
Merck Sharp & Dohme Corp. v. Albrecht,
139 S. Ct. 1668 (2019) .......................................... 10
Oregon Restaurant and Lodging Ass’n v. Perez,
843 F.3d 355 (9th Cir. 2016) ................................ 15
Pereira v. Sessions,
138 S. Ct. 2105 (2018) .......................................... 15
SAS Inst., Inc. v. Iancu,
138 S. Ct. 1348 (2018) .......................................... 16
Sebelius v. Cloer,
569 U.S. 369 (2013) ........................................ 10, 13
Stark v. Wickard,
321 U.S. 288 (1944) ........................................ 10, 12
Sturgeon v. Frost,
577 U.S. 424 (2016) .............................................. 16
Washington State Dep’t of Social & Health Servs. v.
Guardianship Estate of Keffeler,
537 U.S. 371 (2003) .............................................. 18
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) .............................................. 18
STATUTES
5 U.S.C. § 706 ................................................... 2, 3, 12
16 U.S.C. §§ 1801-1884 .............................................. 6
iv
16 U.S.C. § 1821(h)(4) .............................................. 16
16 U.S.C. § 1853(b)(8) ....................................... passim
16 U.S.C. § 1853(b)(14) ............................................ 18
16 U.S.C. § 1853a(e)(2) ............................................ 16
16 U.S.C. § 1854(d)(2)(B) ......................................... 17
16 U.S.C. § 1862(a)................................................... 16
16 U.S.C. § 1862(b)(2)(E) ......................................... 17
OTHER AUTHORITIES
U.S. Const. art. III ........................................... 2, 3, 12
85 Fed. Reg. 7,414 (Feb. 7, 2020)................. 1, 7, 8, 17
v
INTEREST OF AMICUS CURIAE
Amicus
curiae
New
England
Legal
Foundation (NELF) is interested in this case because
an administrative agency, acting without any
identifiable statutory authority, has required certain
fishing vessels within the already beleaguered New
England herring fishery to pay the daily wages of
federal inspectors, whom the fishing vessels must
quarter and accommodate during their fishing trips.1
See 85 Fed. Reg. 7,414 (Feb. 7, 2020). In the
agency’s final rule, the National Marine Fisheries
Service (NMFS) estimated that an at-sea “monitor”
would cost a herring boat $710 per day and would
reduce a boat’s annual financial return by
approximately 20%. 85 Fed. Reg. at 7,418. While
the final rule singles out the Atlantic herring
fishery, that same rule also paves the way for NMFS
to require potentially all of the several other New
England fisheries to fund at-sea inspectors. See id.
at 7,414-417. Moreover, NFMS’s interpretation of its
industry-funding powers, if left standing, would
allow the agency to require potentially all
commercial fisheries under its jurisdiction to pay for
at-sea inspectors.
1 Pursuant to Supreme Court Rule 37.6, NELF states that no
counsel for a party authored NELF’s proposed amicus brief in
whole or in part, and no person or entity, other than amicus,
made a monetary contribution to the preparation or submission
of the brief.
Pursuant to Rule 37.2(a), NELF states that counsel of record
for each party received timely notice of NELF’s intent to file
this brief, and that counsel of record for both parties have
provided their written consent to the filing of this brief.
NELF is committed to upholding the
Constitution’s separation of powers, in which an
independent Federal Judiciary must say what the
law is and decide whether an administrative agency
has exceeded its statutorily delegated authority. To
fulfill its duty under both Article III of the
Constitution and § 706 of the Administrative
Procedure Act, a federal court must review a federal
statute de novo, while adhering to the statute’s plain
language, in order to determine Congress’s intent
and thereby hold an administrative agency
accountable to that intent. Nothing in Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837
(1984), is to the contrary.
NELF is a nonprofit, public interest law firm,
incorporated in Massachusetts in 1977 and
headquartered in Boston.
NELF’s membership
consists of corporations, law firms, individuals, and
others who believe in its mission of promoting
balanced economic growth in New England,
protecting the free enterprise system, and defending
economic rights. NELF’s members and supporters
include a cross-section of large and small businesses
and other organizations from all parts of the
Commonwealth, New England, and the United
States.
For these and other reasons discussed below,
NELF believes that its brief will assist the Court in
deciding whether to grant certiorari in this case.
SUMMARY OF ARGUMENT
Certiorari should be granted to decide
whether Congress has “silently” authorized the
National Marine Fisheries Service (NMFS) to
2
require potentially any domestic commercial fishing
vessel under its jurisdiction to pay for NMFS’s at-sea
observers, under 16 U.S.C. § 1853(b)(8) of the
Magnuson-Stevens Fishery Conservation and
Management Act. Certiorari is also warranted to
clarify that Chevron U.S.A., Inc. v. Nat. Res. Def.
Council, 467 U.S. 837 (1984), is entirely consistent
with a federal court’s independent duty, under both
Article III of the Constitution and § 706 of the
Administrative Procedure Act, to decide whether an
administrative agency has exceeded its statutorily
delegated powers.
Under § 1853(b)(8), Congress has only
authorized NMFS to require that at-sea observers
“be carried on board” domestic fishing vessels. The
ordinary public meaning of this simple language is
that fishing vessels must suffer the presence of atsea observers, and nothing more. Under Chevron, as
always, an administrative agency can only exercise
those powers that Congress has given it. And under
Chevron, as always, a federal court must enforce the
plain language of a statute according to its terms, in
order to ensure that an administrative agency has
not exceeded those limited powers.
Chevron leaves undisturbed the necessary
starting point for interpreting statutory “silence.”
By omitting any textual reference to industry
funding in § 1853(b)(8), Congress has not delegated
that unusual power to the agency in that section of
the Act. And there is nothing in the Act to indicate
otherwise. Chevron does not suggest, nor could it,
that statutory silence on an issue pertaining to an
agency’s power devolves to the presumptive benefit
3
of the agency, and to the presumptive detriment of
the private industry seeking judicial relief from that
agency’s action. Due process would not countenance
such a skewed interpretative scheme.
Contrary to the views of NMFS and the lower
court in this case, industry funding of at-sea
observers cannot be an implied cost of compliance
under § 1853(b)(8).
The ordinary meaning of
“carried on board” does not include anything so
remote and unexpected as the payment of an
observer’s daily wages. Chevron does not direct a
federal court to defend an agency action at all costs,
by engaging in a strained interpretation of a socalled statutory “silence,” while sacrificing the
statute’s plain language and common sense.
Unlike § 1853(b)(8), the Act contains three
other detailed sections, inapplicable here, which
either allow or require the commercial fishing
industry to pay for at-sea observers in certain
narrow contexts.
Congress’s inclusion of clear
industry-funding language in these other statutory
sections must mean that its omission of any such
language in § 1853(b)(8) was a deliberate policy
choice, which an agency cannot override and a court
must enforce. Any notion to the contrary would
render those three other statutory sections
superfluous.
If Congress had really wanted to permit
NMFS to take the extreme step of requiring
potentially all domestic fishing vessels to fund its
inspection regime, Congress would have said so,
plainly and distinctly, as it did in those three other
4
sections of the Act.
Congress would not have
concealed such a broad intent in stray and obscure
textual “clues” that it scattered throughout the Act,
as the D.C. Circuit apparently concluded in this
case.
Unlike in this case, the statutory “silence” at
issue in Chevron was an open-ended statutory term
of art, which created a gap in meaning for the agency
to fill with its delegated rulemaking powers. It
makes no sense to treat statutory silence the same
way here. Section 1853(b)(8) does not contain a
porous term of art that affords more than one
reasonable interpretation.
The meaning of the
prosaic phrase, “carried on board,” is clear on its
face, and within the larger context of the Act as a
whole.
Its meaning leaves nothing to NMFS’s
imagination.
5
ARGUMENT
I.
THIS
COURT
SHOULD
GRANT
CERTIORARI TO DECIDE WHETHER
THE MAGNUSON-STEVENS ACT HAS
“SILENTLY”
AUTHORIZED
THE
NATIONAL
MARINE
FISHERIES
SERVICE TO REQUIRE POTENTIALLY
ALL
DOMESTIC
COMMERCIAL
FISHING VESSELS TO PAY FOR AT-SEA
OBSERVERS.
A.
Under
Chevron,
As
Always,
Congress’s
Omission
Of
Any
Textual Reference To A Disputed
Agency Power Generally Means
That Congress Has Not Delegated
That Power To The Agency.
This Court should grant certiorari to decide
whether Congress has “silently” authorized the
National Marine Fisheries Service (NMFS) to
exercise the extraordinary power of requiring
potentially all domestic commercial fishing vessels
subject to its jurisdiction to pay the daily wages of
NMFS’s at-sea inspectors, known as “observers,”
under § 1853(b)(8) of the Magnuson-Stevens Fishery
Conservation and Management Act, 16 U.S.C.
§§ 1801-1884 (Act).2 Certiorari is also warranted to
2 Section 1853(b)(8) of the Act provides:
(b) Any fishery management plan which is
prepared by any [Regional Fishery Management
Council], or by the Secretary [of Commerce],
with respect to any fishery, may-...
6
clarify, once and for all, that “Chevron [U.S.A., Inc.
v. Nat. Res. Def. Council, 467 U.S. 837 (1984),] did
not undo, and could not have undone, the judicial
duty to provide an independent judgment of the
law’s meaning in the cases that come before the
Nation’s courts.” Buffington v. McDonough, No. 21972, 2022 WL 16726027, at *7 (U.S. Nov. 7, 2022)
(Gorsuch, J., dissenting from denial of certiorari)
(emphasis added).
In § 1853(b)(8) of the Act, Congress has
allowed a fish management plan to require “that one
or more observers be carried on board a vessel of the
United States engaged in fishing for species that are
subject to the plan, for the purpose of collecting data
necessary for the conservation and management of
the fishery.” 16 U.S.C. § 1853(b)(8) (“Contents of
fishery
management
plans,
discretionary
provisions”) (emphasis added).
NMFS has
interpreted this plain statutory language to
authorize the agency to require potentially any
domestic commercial fishing vessel under its
jurisdiction to pay for these at-sea observers. See 85
(8) require that one or more observers be carried
on board a vessel of the United States engaged
in fishing for species that are subject to the
plan, for the purpose of collecting data
necessary for the conservation and management
of the fishery; except that such a vessel shall not
be required to carry an observer on board if the
facilities of the vessel for the quartering of an
observer, or for carrying out observer functions,
are so inadequate or unsafe that the health or
safety of the observer or the safe operation of
the vessel would be jeopardized[.]
16 U.S.C. § 1853(b)(8).
7
Fed. Reg. 7,414, 7,422 (Feb. 7, 2020) (“MagnusonStevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United
States; Industry-Funded Monitoring Final Rule”).
According to NMFS, industry funding of atsea observers is merely an implied cost of compliance
for “carry[ing] [an observer] on board a vessel,”
under § 1853(b)(8). “The requirement to carry
observers [at sea], along with many other
requirements under the Magnuson-Stevens Act,
includes compliance costs on industry participants.”
85 Fed. Reg. at 7,422.
As a result, NMFS promulgated a final rule
requiring certain fishing vessels within the Atlantic
herring fishery to pay the daily wages of at-sea
observers. See 85 Fed. Reg. at 7,430. While the final
rule singles out the Atlantic herring fishery, that
same rule also paves the way for NMFS to require
potentially all of the several other New England
fisheries to fund at-sea observers. See id. at 7,414417. And, while the final rule focuses on the New
England fisheries only, NMFS’s interpretation of
§ 1853(b)(8), if left standing, would permit it to
require potentially all domestic fisheries falling
under the Act to pay for at-sea observers.
A divided panel of the federal court of appeals
for the District of Columbia upheld NMFS’s final
rule. Appendix (App.) at 5. The court applied its
understanding of Chevron and concluded that
§ 1853(b)(8) was ambiguous as to whether industry
funding was an implied cost of compliance, and that
NMFS’s resolution of this purported ambiguity in its
final rule was reasonable. App. at 6-15.
8
Notably, and disturbingly, the D.C. Circuit
emphasized several times throughout its opinion
that Congress, by remaining silent on the issue,
failed to prohibit NMFS from requiring fishing
vessels to pay for at-sea observers in § 1853(b)(8):
[Section
1853(b)(8)]
makes
clear
[NMFS] may direct vessels to carry atsea monitors but leaves unanswered
whether [NMFS] . . . may require
industry to bear the costs of at-sea
monitoring mandated by a fishery
management plan. When Congress has
not ‘directly spoken to the precise
question at issue,’ the agency may fill
this
gap
with
a
reasonable
interpretation of the statutory text.
App. at 6 (quoting Chevron, 467 U.S. at 842)
(emphasis added). See also App. at 8 (“[N]either
Section 1853(b)(8) nor any other provision of the Act
imposes a funding-related restriction on [NMFS’s]
authority to require monitoring in a plan. That also
suggests the Act permits [NMFS] to require
industry-funded monitoring.”) (emphasis added);
App. at 12 (“Section 1853(b)(8) expressly envisions
that monitoring programs will be created and,
through its silence, leaves room for agency discretion
as to the design of such programs. . . . [T]he Act
contains no bar on industry-funded monitoring
programs . . . .”) (emphasis added).
This revealing language from the lower court’s
opinion displays a gross misunderstanding of
Chevron, and it also turns the Constitution’s
separation of powers on its head. “Chevron did not
undo, and could not have undone,” the foundational
9
principle that an Executive Branch agency is
entirely a creature of Congress. The agency can only
exercise those powers that Congress has given it.
“[A]n agency literally has no power to act . . . unless
and until Congress confers power upon it.” Merck
Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668,
1679 (2019) (cleaned up).
See also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 577 (1992)
(“‘When Congress passes an Act empowering
administrative agencies to carry on governmental
activities, the power of those agencies is
circumscribed by the authority granted.’”) (quoting
Stark v. Wickard, 321 U.S. 288, 309 (1944)).
Contrary to the D.C. Circuit’s opinion,
Congress does not have to go out of its way to
prohibit NMFS from imposing an industry-funding
requirement.
To the contrary, Congress must
affirmatively grant NMFS that power.
And
Congress has not done that in the spare “carried on
board” language of § 1853(b)(8). “[W]hen a statute’s
language is plain, the sole function of the courts . . .
is [generally] to enforce it according to its terms.”
Sebelius v. Cloer, 569 U.S. 369, 381 (2013).
Chevron leaves undisturbed this necessary
constitutional starting point for interpreting
statutory “silence.”
By omitting any textual
reference to the disputed agency power (here, the
power to require potentially any domestic
commercial fishery to pay for at-sea observers),
Congress has not delegated that power, unless an
independent judicial review of the statute uncovers a
genuine ambiguity that Congress has authorized the
agency to resolve. See Chevron, 467 U.S. at 842-43
10
& n.9. Here, there is no ambiguity whatsoever
because the meaning of “carried on board” is clear
and finite. “[S]tatutory silence, when viewed in
context, is [here] best interpreted as limiting agency
discretion,” and not expanding that discretion.
Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 223
(2009) (emphasis added).
Put otherwise, nothing in Chevron suggests,
or could suggest, that statutory silence on an issue
pertaining to an agency’s power devolves to the
presumptive benefit of the agency, and to the
presumptive detriment of the regulated private
industry seeking judicial relief from that agency’s
action. Due process would not countenance such a
skewed interpretative scheme. See Buffington, 2022
WL 16726027, at *5 (“[I]t is a basic requirement of
due process that no man can be a judge in his own
case. . . . Yet a [mistakenly] broad reading of
Chevron requires us to presume exactly that. So
long as Executive Branch officials can identify a
statutory ambiguity or silence, we must assume that
the law permits them to judge the scope of their own
powers and duties--at least so long as their decisions
can be said to be ‘reasonable.’”) (cleaned up).
B.
Under Chevron, As Always, A
Federal Court Must Decide De Novo
Whether An Administrative Agency
Has
Exceeded
Its
Statutorily
Delegated Powers.
Far from suggesting any unwarranted
deference to agency action, Chevron reinforces the
crucial role of an independent Federal Judiciary to
11
determine congressional intent, in order to decide
whether an agency has exceeded its statutorily
delegated powers.
“The judiciary is the final
authority on issues of statutory construction and
must reject administrative constructions which are
contrary to clear congressional intent.” Chevron, 467
U.S. at 843 n.9.3
Indeed, Article III of the Constitution requires
a federal court “‘to protect justiciable individual
rights against administrative action fairly beyond
the granted powers,’” by “‘adjudicat[ing] cases and
controversies as to claims of infringement of
individual rights . . . by the exertion of unauthorized
administrative power.’” Defenders of Wildlife, 504
U.S. at 577 (quoting Stark, 321 U.S. at 310)
(emphasis added).
In short, Chevron does not, and could not,
direct a lower federal court to defend a challenged
agency action at all costs, by engaging in a strained
interpretation of a so-called statutory “silence,” while
sacrificing the statute’s plain language and common
sense. “The problem with this approach is the one
that inheres in most incorrect interpretations of
statutes: It [allows the agency] to add words to the
3 De novo judicial review of a statute under Chevron flows from
Article III of the Constitution and § 706 of the Administrative
Procedure Act, 5 U.S.C. § 706. See Marbury v. Madison, 1
Cranch 137, 177 (1803) (Under Article III, “[i]t is emphatically
the province and duty of the judicial department to say what
the law is.”); 5 U.S.C. § 706 (“[T]he reviewing court shall decide
all relevant questions of law, interpret constitutional and
statutory provisions . . . . The reviewing court shall . . . (2) hold
unlawful and set aside agency action . . . found to be . . . (C) in
excess of statutory jurisdiction, authority, or limitations, or
short of statutory right[.]”) (emphasis added).
12
law to produce what is thought to be a desirable
result. That is Congress’s province. We construe
[the Act’s] silence as exactly that: silence.” E.E.O.C.
v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768,
774 (2015) (interpreting Title VII) (emphasis added).
Instead, Chevron instructs a court, as always,
to “employ[] traditional tools of statutory
construction” before deciding whether a statute is
genuinely “silent or ambiguous with respect to the
specific issue” of agency power. Chevron, 467 U.S. at
843 & n.9. See also Kisor v. Wilkie, 139 S. Ct. 2400,
2415 (2019) (federal court must “empty its toolkit” of
rules of statutory interpretation in order to engage
in independent determination of congressional
intent).
C.
Under Chevron, As Always, A
Federal Court Must Enforce The
Plain Language Of A Statute,
Which In This Case Does Not
Authorize
NMFS
To
Require
Potentially All Domestic Fishing
Vessels
To
Pay
For
At-Sea
Observers.
The essential tool of statutory construction in
this case, which the lower court apparently failed to
apply, is that “when a statute’s language is plain,
the sole function of the courts . . . is [generally] to
enforce it according to its terms.” Sebelius, 569 U.S.
at 381. In § 1853(b)(8), Congress has permitted a
regional fish management plan to require “that one
or more observers be carried on board a vessel of the
United States engaged in fishing for species” that
are regulated by the Act. Id. (emphasis added).
13
Even a passing judicial glance at this simple
statutory language, unencumbered by mistaken
notions of Chevron “deference,” makes clear both
Congress’s intent and the lower court’s error.
Congress has only allowed NMFS to require fishing
vessels to “to carry an observer on board,” i.e., to
suffer the presence of an observer, during their
fishing trips. 16 U.S.C. § 1853(b)(8). In fact,
Congress refers to “the quartering of an observer” in
the very same section of the Act. “[A] vessel shall
not be required to carry an observer on board if the
facilities of the vessel for the quartering of an
observer, or for carrying out observer functions, are
so inadequate or unsafe . . . .” Id. (emphasis added).
Indeed, is there any other meaning that this
simple phrase, “carried on board,” could possibly
convey to the ordinary reader? “This Court normally
interprets a statute in accord with the ordinary
public meaning of its terms at the time of its
enactment.” Bostock v. Clayton Cnty., Georgia, 140
S. Ct. 1731, 1738 (2020) (emphasis added).4 The
ordinary public meaning of the phrase “carried on
board” certainly does not suggest the inclusion of
anything so remote and surprising as the payment of
the at-sea observer’s daily wages. “[T]he Court need
not resort to Chevron deference, as [this] lower
court[] ha[s] done, for Congress has supplied a clear
and unambiguous answer to the interpretive
4 See also Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581,
591 (2004) (“Congress used the phrase ‘discrimination because
of an individual’s age’ [in the ADEA] the same way that
ordinary people in common usage might speak of age
discrimination any day of the week.”) (cleaned up) (emphasis
added).
14
question at hand.” Pereira v. Sessions, 138 S. Ct.
2105, 2113 (2018). The lower court should have
readily concluded that the clear language in
§ 1853(b)(8) leaves nothing to NMFS’s imagination
and, therefore, precludes its industry-funding
requirement.
Therefore, to the extent § 1853(b)(8) can be
characterized as remaining “silent” on this issue,
that silence can only mean that Congress did not
authorize NMFS to exercise such an unusual power.
“[S]tatutory silence, when viewed in context, is
[here] best interpreted as limiting agency
discretion.” Entergy Corp., 556 U.S. at 223. See also
City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 296
(2013) (“Congress knows to speak in plain terms
when it wishes to circumscribe, and in capacious
terms when it wishes to enlarge, agency discretion.”)
(emphasis added). “In other words, not all statutory
silences are created equal. But you would never
know that from the majority’s opinion.” Oregon
Restaurant and Lodging Ass’n v. Perez, 843 F.3d 355,
360 (9th Cir. 2016) (O’Scannlain, J., dissenting from
denial of rehearing en banc) (contrasting statutory
silence that precludes agency action with statutory
silence that creates ambiguity for agency to resolve).
A proper application of Chevron, then, should
have ended the matter in the petitioners’ favor,
because the plain language of § 1853(b)(8) tells us
that Congress has authorized NMFS to require
fishing vessels to quarter and accommodate the
observers--a substantial imposition in itself--and
nothing more. “If the intent of Congress is clear,
that is the end of the matter; for the court, as well as
15
the agency, must give effect to the unambiguously
expressed intent of Congress.” Chevron, 467 U.S. at
842-43 (emphasis added). See also SAS Inst., Inc. v.
Iancu, 138 S. Ct. 1348, 1355 (2018) (“Where a
statute’s language carries a plain meaning, the duty
of an administrative agency is to follow its
commands as written, not to supplant those
commands with others it may prefer.”).
D.
Under Chevron, As Always, A
Federal Court Should Consider The
Statute As A Whole, Which In This
Case Confirms That Congress Has
Not Authorized NMFS To Require
Potentially All Fishing Vessels To
Pay For At-Sea Observers.
Lest a court have any conceivable doubts
about NMFS’s limited powers under § 1853(b)(8),
Chevron would instruct that court to remove from its
toolkit “the fundamental canon of statutory
construction that the words of a statute must be read
in their context and with a view to their place in the
overall statutory scheme.” Sturgeon v. Frost, 577
U.S. 424, 438 (2016) (cleaned up). Significantly, the
Act contains three detailed sections, inapplicable
here, which either allow or require the commercial
fishing industry to pay for at-sea observers in certain
narrow contexts.5
Congress’s inclusion of clear
See Petition for Certiorari at 5-6 (discussing 16 U.S.C.
§ 1862(a)(2) (North Pacific fishery), § 1853a(e)(2) (limited
access privilege programs), and § 1821(h)(4) (foreign fishing
vessels in U.S. waters). Moreover, in two of these three
statutory sections, pertaining to domestic fishing vessels,
Congress has severely limited the extent to which industry
funding can deplete a fishing vessel’s revenues. See 16 U.S.C.
5
16
industry-funding language in these other statutory
sections must mean that its omission of any such
language in § 1853(b)(8) was a deliberate policy
choice, which an agency cannot override and a court
must enforce. “When Congress includes particular
language in one section of a statute but omits it in
another section of the same Act, we generally take
the choice to be deliberate.” Badgerow v. Walters,
142 S. Ct. 1310, 1318 (2022) (cleaned up).
In short, those three sections of the Act show
that Congress did not treat industry funding of atsea observers as an implied cost of compliance. After
all, Congress deemed it necessary to address that
very issue, and in some detail, in those three other
sections. Therefore, NMFS was not at liberty to
tease an industry-funding requirement out of the
spare “carried on board” language of § 1853(b)(8).
Any notion to the contrary would render those three
other statutory sections superfluous. “[T]he cardinal
principle of interpretation [is] that courts must give
effect, if possible, to every clause and word of a
statute.” Loughrin v. United States, 573 U.S. 351,
358 (2014) (cleaned up).
Put otherwise, if Congress had really
intended, in § 1853(b)(8), to permit NMFS to take
§ 1862(b)(2)(E) (for North Pacific fishery, if observer fees are set
as fixed percentage, they cannot exceed 2% of value of vessel’s
catch); § 1854(d)(2)(B) (under limited access privilege
programs, observer fees cannot exceed 3% of catch value).
These express statutory limits contrast markedly with NMFS’s
own concession that its final rule would deplete approximately
20% of the annual returns of the affected Atlantic herring
fishery. See 85 Fed. Reg. at 7,418.
17
the extreme step of requiring potentially all
domestic fishing vessels under its jurisdiction to
fund its inspection regime, Congress would have said
so, plainly and distinctly, as it did in those three
other sections of the Act. Congress would not have
concealed such a broad and surprising intent in
stray and obscure textual “clues” that it scattered
throughout the Act, as the D.C. Circuit apparently
concluded in this case.6
See Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress
. . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary
provisions--it does not, one might say, hide elephants
in mouseholes.”) (emphasis added).
For example, the lower court relied erroneously on the
general, catch-all “necessary and appropriate” clause,
appearing at 16 U.S.C. § 1853(b)(14) (fishery management plan
may “prescribe such other measures, requirements, or
conditions and restrictions as are determined to be necessary
and appropriate for the conservation and management of the
fishery.”). See App. at 6-8. This “necessary and appropriate”
clause follows the specific listing of the discretionary
components of a fishery management plan, including the at-sea
observer provision in dispute.
However, none of those
discretionary elements has anything to do with industry
funding. Under traditional tools of statutory interpretation,
then, the “necessary and appropriate” clause cannot include an
industry-funding requirement. See Washington State Dep’t of
Social & Health Servs. v. Guardianship Estate of Keffeler, 537
U.S. 371, 384 (2003) (“[U]nder the established interpretative
canons of noscitur a sociis and ejusdem generis, where general
words follow specific words in a statutory enumeration, the
general words are construed to embrace only objects similar in
nature to those objects enumerated by the preceding specific
words.”) (cleaned up).
6
18
II.
CERTIORARI IS ALSO WARRANTED TO
CLARIFY THAT, UNLIKE IN THIS CASE,
THE
STATUTORY
SILENCE
IN
CHEVRON CONCERNED AN OPENENDED STATUTORY TERM OF ART
THAT CREATED A GAP IN MEANING
FOR THE AGENCY TO FILL.
Finally, it is worth noting that, unlike in this
case, the statutory “silence” at issue in Chevron itself
was an open-ended statutory term of art, which
created a gap in meaning for the agency to fill with
its delegated rulemaking powers. See Chevron, 467
U.S. at 843-48 (EPA had delegated authority to
interpret statutory term “major stationary sources”
of air pollution, in Clean Air Act, either broadly or
narrowly). See also Entergy Corp., 556 U.S. at 21920, 222-23 (statutory language, in Clean Water Act,
instructing EPA to set standards for cooling water
intake structures that reflect “the best technology
available for minimizing adverse environmental
impact,” was sufficiently porous to permit EPA to
consider cost-benefit analysis).
Specifically, in Chevron, unlike here, Congress
provided a generally defined term of art--“major
stationary sources” of air pollution--and the EPA had
the delegated authority, under the Clean Air Act, to
interpret that term broadly when promulgating
standards for States’ permit programs. See Chevron,
467 U.S. at 840 (EPA could “treat all of the pollutionemitting devices within the same industrial grouping
as though they were encased within a single [major
stationary source].”). In that case, it made sense to
treat statutory silence as creating an ambiguity for
the agency to resolve with its delegated rulemaking
powers.
19
But it makes no sense to treat statutory
silence the same way here. Unlike in Chevron,
Congress has not provided a porous term of art in
§ 1853(b)(8) of the Act, which could support more
than one reasonable interpretation. Instead, the
meaning of the prosaic statutory phrase, “carried on
board a vessel,” is clear on its face, and within the
larger context of the Act as a whole. This statutory
language leaves nothing to NMFS’s imagination.
In sum, certiorari is warranted to clarify that
Chevron reinforces a federal court’s independent
duty to enforce the plain language of a statute, in
order to decide, in this case, whether Congress
“silently” authorized NMFS to require any domestic
fishing vessel to pay for at-sea observers.
20
CONCLUSION
For the reasons stated above, NELF
respectfully requests that this Court grant the
petitioners’ petition for certiorari.
Respectfully submitted,
NEW ENGLAND LEGAL FOUNDATION
By its attorneys,
Benjamin G. Robbins
Counsel of Record
Daniel B. Winslow, President
New England Legal Foundation
333 Washington Street
Suite 850
Boston, MA 02108
(617) 695-3660
brobbins@newenglandlegal.org
December 6, 2022
21
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.