Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

No. 22-451

In the

Supreme Court of the United States

__________

LOPER BRIGHT ENTERPRISES, et al.,

Petitioners,

v.

GINA RAIMONDO, Secretary of Commerce, et al.,

Respondents.

__________

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

__________

BRIEF OF THE DRI CENTER FOR LAW AND

PUBLIC POLICY AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

__________

Melinda S. Kollross

Counsel of Record

Don R. Sampen

Clausen Miller, P.C.

10 South LaSalle St., 16th Fl.

Chicago, Illinois 60603

(312) 606-7803

mkollross@clausen.com

dsampen@clausen.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF THE AMICUS .................................. 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 3

I.

In expanding industry-funded

monitoring beyond what the MSA

clearly allows, the Service’s

regulation implicates the major

questions doctrine. ...................................... 4

II.

Additional factors support

application of the major questions

doctrine. ....................................................... 7

CONCLUSION ......................................................... 13

i

TABLE OF AUTHORITIES

Page(s)

Cases

Biden v. Nebraska,

2023 U.S. Lexis 2793 ............................... 1, 3, 7-10

Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc.,

467 U.S. 837 (1984)...................................... 1-4, 13

Food and Drug Administration v.

Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000)................................................7

Gonzales v. Oregon,

546 U.S. 243 (2006)............................................6, 7

Interstate Commerce Commission v.

Cincinnati, New Orleans and Texas

Pacific Railway Co.,

167 U.S. 479 (1897)................................................5

Loper Bright Enterprises, Inc. v.

Raimondo,

45 F.4th 359 (D.C. Cir. 2022) ......................4, 7, 11

MCI Telecommunications Corp. v.

AT&T Co.,

512 U.S. 218 (1994)........................................5, 7, 8

Merck & Co., Inc. v. United States

Department of Health and Human

Services,

962 F.3d 531 (D.C. Cir. 2020) ................................5

ii

Sebelius v. Cloer,

569 U.S. 369 (2013)..............................................12

Utility Air Regulatory Group

v. Environmental Protection Agency,

573 U.S. 302 (2014) ................................................9

West Virginia v. Environmental

Protection Agency,

142 S. Ct. 2587 (2022)............................... 1-5, 7-11

Statutes

16 U.S.C. § 1853 .................................................... 9-11

16 U.S.C. § 1858 .................................................... 9-11

16 U.S.C. § 1862 .................................................... 8-11

Clean Air Act .............................................................11

Controlled Substances Act ..........................................8

Federal Communications Act .....................................8

Higher Education Relief Opportunities

for Students Act of 2003 ........................................3

Magnuson-Stevens Fishery

Conservation and Management Act

of 1976 ....................................................................2

Other Authorities

85 Fed. Reg. 7414 ....................................................5, 6

P.L. 101-629...............................................................10

iii

P.L. 94-265.................................................................10

P.L. 297 ......................................................................10

iv

INTEREST OF THE AMICUS

The DRI Center for Law and Public Policy1 is

the public policy “think tank” and advocacy voice of

DRI, Inc.—an international organization of

approximately 14,000 attorneys who represent

businesses in civil litigation. DRI’s mission includes

enhancing

the

skills,

effectiveness,

and

professionalism of defense lawyers; promoting

appreciation of the role of defense lawyers in the civil

justice system; and anticipating and addressing

substantive and procedural issues germane to defense

lawyers and the fairness of the civil justice system.

The Center participates as an amicus curiae in this

Court, federal courts of appeals, and state appellate

courts in an ongoing effort to promote fairness,

consistency, and efficiency in the civil justice system.

The instant case is appropriate for the Center’s

amicus participation. The Chevron doctrine was at

the core of the D.C. Circuit’s decision, and recent case

law has suggested a potential for tension between

that doctrine and the major questions doctrine. See,

e.g., Biden v. Nebraska, 2023 U.S. Lexis 2793; West

Virginia v. Environmental Protection Agency, 142 S.

Ct. 2587 (2022). DRI members’ clients that are

subject to federal regulation have a keen interest in

knowing the relationship between the two doctrines,

and this case will provide the Court an opportunity to

help bring about needed clarification. That, in turn,

No counsel for any party authored this brief in whole or

in part. No person or entity other than amicus, its members, or

its counsel has made a monetary contribution to the preparation

or submission of this brief.

1

1

will allow DRI members to provide better advice to

their clients.

SUMMARY OF ARGUMENT

For a court evaluating the authority conferred

by enabling legislation upon an administrative

agency, the major questions doctrine under West

Virginia serves as a threshold consideration prior to

application of the Chevron doctrine, derived from

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). Where the

authority assumed by the agency is highly

consequential in nature, West Virginia requires clear

congressional authorization, rather than authority

based on routine or gap-filler type statutory

provisions, as may be permissible under Chevron.

Here, without clear authority conferred by the

Magnuson-Stevens Fishery Conservation and

Management Act of 1976 (“MSA”), the administrative

agency assumed the power to prescribe at-sea

monitoring programs. The monitors’ salaries were to

be paid for by industry fisheries, potentially resulting

in a 20 percent drop in returns by the affected

fisheries. On its face, the agency’s assumed power

constitutes a highly consequential result.

The

agency’s action, moreover, has not only economic but

also political significance. It is based on “long-extant”

statutory language only recently interpreted to

provide the power sought to be exercised. And the

parts of the statute put in play by the agency amount

to “little-used backwater” provisions and, in one

instance, actually cut against the agency’s

interpretation.

2

Accordingly, the amicus urges this Court to

decide this appeal in accordance with the major

questions doctrine, rather than the Chevron doctrine,

and reverse the judgment below. In so doing, the

Court need not reach the question of whether

Chevron should be overruled.

ARGUMENT

As recently as this past June 30, this Court

recognized that “major questions cases have arisen

from all corners of the administrative state.” Biden v.

Nebraska, 2023 U.S. Lexis 2793, at *41, quoting West

Virginia v. Environmental Protection Agency, 142

S.Ct. 2587 (2022). In West Virginia itself, the Court

articulated the parameters of the “major questions

doctrine.” It observed that when a court tests the

authority of an administrative agency, certain

“extraordinary cases . . . call for a different approach,”

i.e., different from the “routine statutory

interpretation” afforded by Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S.

837 (1984). See 142 S.Ct. at 2608-09. Such a case

involves an agency “asserting highly consequential

power beyond what Congress could reasonably be

understood to have granted” in the absence of “clear

congressional authorization.” 142 S.Ct. at 2609.

West Virginia was a “major questions case” because,

among other reasons, the EPA there sought to

“substantially restructure the American energy

market.” Id. at 2610. Likewise in Nebraska, the

Court found a major question of authority when the

Secretary of Education invoked the Higher Education

Relief Opportunities for Students Act of 2003 to

cancel some $430 billion of federal student loan

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balances without consent of Congress.

Lexis 2793, at *40-42.

2023 U.S.

In the instant case, the D.C. Circuit accorded

the major questions doctrine brief mention. It found

that, in promulgating a regulation for implementing

industry-funded monitoring programs in New

England fisheries, the actions of the administrative

agency, the National Marine Fisheries Service

(“Service”), were “distinct” and confined within “a

specific industry.” Loper Bright Enterprises, Inc. v.

Raimondo, 45 F.4th 359, 365 (D.C. Cir. 2022). The

court therefore limited its review to the familiar

questions under Chevron “of whether Congress has

spoken clearly, and if not, whether the implementing

agency’s interpretation is reasonable.” Id.

The parameters of the major questions

doctrine, however, are not so readily disregarded. As

defined by this Court, the doctrine squarely addresses

overreach inherent in the Service’s regulation seeking

to standardize industry-funded monitoring in fishery

management plans under the MSA. Because the

major questions doctrine is dispositive, no occasion

arises for review under Chevron.

I.

In expanding industry-funded monitoring

beyond what the MSA clearly allows, the

Service’s regulation implicates the major

questions doctrine.

West Virginia described the major questions

doctrine as involving matters of an “extraordinary” or

“highly consequential” nature – as distinguished from

“routine” or “ordinary” – such that Congress could be

understood to have conferred the power upon an

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administrative agency to act only through “clear

congressional authorization.” 142 S. Ct. at 2607-09.

Under the doctrine, an agency’s power to act in regard

to such matters will not be inferred from “modest

words,” a mere “plausible textual basis,” an “ancillary

provision” or a “gap filler” in the statute. Id. at 260910.

This Court uses impact on the business or

industry being regulated as one measure of the

extraordinary nature of the agency action under

consideration. In West Virginia, for example, the

Court found that the government’s own projections of

the impact of Environmental Protection Agency rules

on the electric power generation industry entailed

billions of dollars in compliance costs. Id. at 2604. In

MCI Telecommunications Corp. v. AT&T Co., 512

U.S. 218 (1994), cited repeatedly in West Virginia as

an example of application of the major questions

doctrine, the Court considered not so much an

economic impact but the consequences of a major

change in rate regulation on the long-distance

telephone industry. 512 U.S. at 231-32. Again the

impact of rate regulation on an industry, this time the

railroad industry, was the major question at issue in

Interstate Commerce Commission v. Cincinnati, New

Orleans and Texas Pacific Railway Co., 167 U.S. 479

(1897), cited in Justice Gorsuch’s concurrence in West

Virginia. See also Merck & Co., Inc. v. United States

Department of Health and Human Services, 962 F.3d

531, 540-41 (D.C. Cir. 2020) (finding that HHS’s

regulation requiring drug manufacturers to disclose

cost information had “major significance” beyond the

authority of HHS, largely due to the consequences for

drug companies).

5

In the case currently before the Court, the

Service’s industry-funded monitoring program has no

less an extraordinary impact on the fishing industry.

Although the Atlantic herring fishery is the

immediate target, the regulation is much broader in

that it “standardize[s] future industry-funded

monitoring programs in New England fishery

management plans” in general. 85 Fed. Reg. 7414.

Thus, the Service intends for the program to include

“the Atlantic Herring FMP [fishery management

plan], the Atlantic Sea Scallop FMP, the Deep-Sea

Red Crab FMP, the Northeast Multispecies FMP, and

the Northeast Skate FMP.” Id. Where implemented,

moreover, the cost is likely to be devastating. The

regulation itself discloses “that the cost of the

proposed at-sea monitoring coverage may reduce the

annual RTO [returns to owner] . . . up to

approximately 20 percent.” Id. at 7418. Any business

would reasonably regard as extraordinary a 20

percent drop in returns when caused by a single

exercise of agency regulatory authority.2

In assessing the extraordinary nature of the

matter, moreover, this Court considers not just the

agency power directly at issue, but also the

implications of the authority claimed by the agency.

See, e.g., Gonzales v. Oregon, 546 U.S. 243, 267-68

(2006) (considering implications of Attorney General’s

prohibition on drugs used for physician-assisted

suicide and potential for authority claimed to be

extended to other treatments). Here, if this Court

The 20 percent estimate in the regulation is stated with

respect to “Category A or B herring permits,” but the regulation

provides no explanation for why any other fishery would incur

less cost impact.

2

6

accepts the Service’s arguments, the same

justifications

would

allow

industry-funded

monitoring to extend to all U.S. fisheries resulting in

the same 20 percent reduction in returns, and

perhaps even to other industries.

The Service’s inability to identify any other

context “in which any agency, without express

direction from Congress, requires an industry to fund

its inspection regime,” further highlights the

extraordinary nature of the Service’s position. See

Loper Bright Enterprises, 45 F.4th at 376 (Walker

dissent).

From the perspective of the impact on the

fishery industry, the Service’s regulation therefore

qualifies as “extraordinary” and an appropriate

occasion for application of the major questions

doctrine.

II.

Additional factors support application of the

major questions doctrine.

Other considerations likewise call for invoking

the doctrine. This Court frequently stresses the

doctrine’s relevance when addressing agency

decisions having “economic and political significance.”

Biden v. Nebraska, 2023 U.S. Lexis 2793, at *41-42

(opinion), *57-58 (Barrett, J., concurring) (2023);

West Virginia, 142 S. Ct. at 2605, 2608 (opinion), 2616

(Gorsuch, J., concurring); Food and Drug

Administration v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 160-61 (2000). While both are

important, the absence of one factor or the other does

not negate the presence of a major question. In

Gonzales, for example, the Court effectively applied

7

the doctrine based on the political implications of the

Attorney General seeking to use the Controlled

Substances Act to prohibit physician-assisted suicide,

giving no substantive attention to economic

consequences. 546 U.S. at 258-69. Similarly, in MCI

Telecommunications, the Court focused on the

Federal Communications Commission’s lack of

authority to modify the Federal Communications Act

by regulation, without addressing the economic

impact of the agency’s modifications. 512 U.S. at 22434.

Nonetheless, economic and political factors

both play a role here. The potential economic impact

of the Service’s regulation on U.S. fisheries is

addressed above. (See pp. 6-7, supra.) On the

political side, important questions arise concerning

the separation of powers and who – i.e., the nation’s

legislative branch or the executive branch – has

authority to impose payment upon the fisheries

industry for at-sea monitoring salaries incurred at the

behest of the government. By allocating authority to

itself, the Service may be viewed as attempting to

work around the “control of the purse” by Congress

and its ability to “check upon profusion and

extravagance.” Nebraska, 2023 U.S. Lexis at *41

(quoting case in part).

Even apart from payment-imposing authority,

political significance may be attributed to Congress

already having considered the circumstances under

which industry-funded monitoring should be

implemented.

Congress did so by expressly

authorizing its use by the North Pacific Councils

subject to strict conditions. 16 U.S.C. § 1862(b)(2)(E).

8

The Service’s attempt to expand the scope of the

monitoring beyond the limitations set by Congress

serves as an additional attempt to circumvent the

legislative political process. Cf. West Virginia, 142 S.

Ct. at 2620-21 (Gorsuch, J., concurrence, finding it

“telling” when Congress has considered but rejected

the action being proposed by the agency).

Another circumstance signaling the major

questions doctrine is the Service’s reliance on “a longextant statute” to justify a “transformative expansion

in its regulatory authority.” West Virginia,142 S. Ct.

at 2610, quoting Utility Air Regulatory Group v.

Environmental Protection Agency, 573 U.S. 302, 324

(2014). See also Nebraska, 2023 U.S. Lexis 2793 at

*60-61 (Barrett, J., concurrence). The Service here

relies on a variety of the MSA’s long-standing

provisions in support of its interpretation. They

include most prominently (a) the provision allowing

fishery management plans to require an observer to

“be carried on board a vessel,” 16 U.S.C. § 1853(b)(8);

(b) language in the same section of the statute

authorizing the Service to promulgate “necessary or

appropriate” regulations, id. § 1853(b)(14), (c)(1); (c)

language authorizing the agency to impose sanctions

for any payment owing an observer, id. §

1858(g)(1)(D); and (d) the section of the MSA

providing for industry-funded monitoring in the

North Pacific, id. § 1862(a).3

In its Brief for the Respondents in Opposition to the

grant of certiorari, the Service appears to rely principally on §§

1853(b)(8), 1853(b)(14) & (c)(1), and 1858(g)(1)(D). See Brief 1419. It also argues, however, that the fee-based program for

North Pacific fisheries, § 1862(a), “belies” the extraordinary

3

9

Each of these provisions predate the Service’s

regulation currently at issue by decades:

MSA section

Description

First Enacted

1853(b)(8)

“carried on board”

P.L.101-627

109 (1990)

1853(b)(14),

(c)(1)

“necessary or

appropriate”

P.L. 94-265 §

303(b)(7), (c)

(1976)

§

1858(g)(1)(D) sanctions for

nonpayment of

observer

P.L. 104-297 §

114 (1996)

1862(a)

P.L. 101-627 §

118 (1990)

North Pacific paid

observers

The chart reflects that, to justify its interpretation

based on statutory language, the Service cobbles

together a collection of MSA regulatory provisions

between 24 and 44 years old. As Justice Barrett

recently observed, “A longstanding want of assertion

of power by those who presumably would be alert to

exercise it may provide some clue that the power was

never conferred.” Nebraska, 2023 U.S. Lexis 2793, at

*60 (Barrett, J., concurring, quoting authority,

internal quotes omitted). See also West Virginia, 142

S. Ct. at 2610.

Finally, as part of the analysis for determining

suitability of the major questions doctrine, this Court

nature of the authority it seeks with respect to petitioners. Brief

21.

10

utilizes conventional rules of statutory interpretation

to assess the clarity and strength of the language

relied upon by the agency to justify a claimed grant of

authority. In West Virginia, for example, to analyze

the Clean Air Act provisions relied on by the EPA, the

Court turned to 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.” 142 S. Ct. at 2607. Based

on its evaluation, the Court characterized the EPA’s

key statutory section as a “little-used backwater”

provision intended as a “gap filler” and one “not

plausible” as a basis for conferring the broad-ranging

authority sought to be exercised by the agency. Id. at

2610-14, 2616.

Application of the rules of statutory

interpretation results in a similar outcome here. The

Service relies most heavily on the “necessary or

appropriate” language of § 1853(b)(14) and (c)(1),

which are obvious gap fillers, and §§ 1853(b)(8) and

1858(g)(1)(D), both of which are silent on extending

industry-funded monitoring programs beyond those

expressly provided for in the MSA.

Regarding the North Pacific industry-funded

monitoring program created by § 1862, the D.C.

Circuit essentially found that it did “not

unambiguously” prohibit other forms of fee-based

monitoring. 45 F.4th at 367. Under conventional

rules of statutory interpretation, however, “where

Congress includes particular language in one section

of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion

11

or exclusion.” Sebelius v. Cloer, 569 U.S. 369, 378

(2013) (quoting case).

As recognized by Judge

Walker’s dissent, the express authorization in § 1862

thus should have given rise – not to ambiguity as

suggested by the D.C. Circuit majority – but to the

presumption that Congress intentionally declined to

allow industry-funded monitoring elsewhere in the

country. See 45 F.4th at 378. Properly applied, the

rules of construction do not create an ambiguity but

cut against the result argued for by the Service.

Hence, for purposes of determining whether

the instant case requires major questions treatment,

the rules of statutory construction, along with the

extraordinary nature of the issue involved and all

other considerations this Court regards as relevant,

point in favor of application of the doctrine. Upon its

application, moreover, the Court should find that the

MSA lacks the necessary clarity to confer upon the

Service the power to require industry-funded

monitoring, beyond that set expressly forth in the Act

itself.

12

CONCLUSION

The Court should reverse the judgment below

and grant summary judgment in favor of Petitioners

based on the major questions doctrine. In doing so the

Court should find it unnecessary to reach the question

whether Chevron should be overruled.

Dated: July 13, 2023

Respectfully submitted,

Melinda S. Kollross

Counsel of Record

Don R. Sampen

Clausen Miller, P.C.

10 S. LaSalle St., 16th Fl.

Chicago, IL 60603

(312) 606-7803

mkollross@clausen.com

dsampen@clausen.com

Counsel for Amicus Curiae

13