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, IN HER OFFICIAL CAPACITY AS

SECRETARY OF COMMERCE, ET AL.,

Respondents.

ON A 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

July 20, 2023

BATEMAN & SLADE, INC.

STONEHAM, MASSACHUSETTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iv

INTEREST OF AMICUS CURIAE ............................ 1

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

ARGUMENT ............................................................... 7

I.

THIS COURT SHOULD CLARIFY

THAT CHEVRON REQUIRES A

FEDERAL COURT, AS ALWAYS, TO

APPLY TRADITIONAL TOOLS OF

STATUTORY CONSTRUCTION TO

DECIDE

WHETHER

AN

ADMINISTRATIVE AGENCY HAS

EXCEEDED

ITS

DELEGATED

POWERS........................................................... 7

A.

While Chevron Properly States

This Standard Of Independent

Judicial Review, The Opinion

Also Contains Misleading And

Unnecessary

Language

Suggesting The Untraditional

Interpretive Rule, Applied By

The Lower Court, That Congress

Has “Silently” Authorized An

Agency Regulation Whenever It

Has Not Literally Prohibited The

“Precise” Regulatory “Question

At Issue.” ................................................ 7

B.

The

Rogue

Pro-Agency

Presumption That The Lower

Court Gleaned From Chevron’s

Misleading Language Offends

The Separation Of Powers And

Eviscerates Independent Judicial

Review, By Causing A Court To

Throw In The Interpretive Towel

As Soon As It Sees A Purported

“Silence” On The Face Of A

Statute.................................................. 13

C.

The Lower Court’s Hyperliteral

Reading of Chevron Caused It To

Repudiate

The

Statute’s

Ordinary

Meaning

And

Traditional Interpretive Tools

That

Draw

Reasonable

Inferences

From

Statutory

Context To Explain A Purported

Silence. ................................................. 18

D.

Contrary To The Lower Court’s

Misreading Of Chevron, Not

Every

Purported

Statutory

Silence Creates A Genuine

Ambiguity For The Agency To

Resolve. ................................................ 25

E.

This Court Does Not Invoke

Chevron’s Misleading Language,

Or The Pro-Agency Interpretive

Rule That It Suggests, When The

Court Undertakes Or Discusses

A Step-One Analysis Of An

Administrative Statute....................... 27

ii

CONCLUSION .......................................................... 31

iii

TABLE OF AUTHORITIES

CASES

Adirondack Med. Ctr. v. Sebelius,

740 F.3d 692 (D.C. Cir. 2014) .............................. 21

Agins v. City of Tiburon,

447 U.S. 255 (1980) .............................................. 12

Badgerow v. Walters,

142 S. Ct. 1310 (2022) .......................................... 22

Bostock v. Clayton County, Georgia,

140 S. Ct. 1731 (2020) .................................... 15, 16

Brown v. Davenport,

142 S. Ct. 1510 (2022) .......................................... 12

Brown v. Gardner,

513 U.S. 115 (1994) .............................15, 27, 29, 30

Buffington v. McDonough, No. 21-972, 2022 WL

16726027 (U.S. Nov. 7, 2022) ............................... 17

Burns v. United States, 501 U.S. 129 (1991)........... 25

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

536 U.S. 73 (2002) ................................................ 20

Chevron U.S.A., Inc. v. Natural Res. Def. Council,

467 U.S. 837 (1984) ....................................... passim

City of Arlington, Tex. v. F.C.C.,

569 U.S. 290 (2013) ................................................ 9

iv

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) .............................................. 23

Finley v. United States,

490 U.S. 545 (1989) .............................................. 16

I.N.S. v. Cardoza-Fonseca,

480 U.S. 421 (1987) .............................................. 28

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ...........................9, 15, 26, 27

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

544 U.S. 528 (2005) .............................................. 12

Loughrin v. United States,

573 U.S. 351 (2014) .............................................. 23

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .............................................. 16

Marbury v. Madison,

1 Cranch 137, 5 U.S. 137 (1803) ............................ 9

Merck Sharp & Dohme Corp. v. Albrecht,

139 S. Ct. 1668 (2019) .......................................... 16

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992) ............................................. 17

Natural Res. Def. Council, Inc. v. Gorsuch,

685 F.2d 718 726 (D. C. Cir. 1982)........... 1, 2, 7, 13

Pereira v. Sessions,

138 S. Ct. 2105 (2018) .......................................... 19

v

RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

566 U.S. 639 (2012) .............................................. 20

Ry. Labor Executives’ Ass’n v. Nat’l Mediation Bd.,

29 F.3d 655 (D.C. Cir. 1994) ................................ 15

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018) ................................... passim

Stark v. Wickard,

321 U.S. 288 (1944) .............................................. 16

Sturgeon v. Frost,

577 U.S. 424 (2016) .............................................. 20

Util. Air Regulatory Group v. E.P.A.,

573 U.S. 302 (2014) .............................................. 26

Virginia Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019) .......................................... 15

Washington State Dep’t of Social & Health Servs. v.

Guardianship Estate of Keffeler,

537 U.S. 371 (2003) .............................................. 25

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .............................................. 25

STATUTES

5 U.S.C. § 706(2)(C)................................................ 1, 9

8 U.S.C. § 1158(a)..................................................... 28

8 U.S.C. § 1253(h) .................................................... 28

16 U.S.C. §§ 1801-1884 ............................................ 18

vi

16 U.S.C. § 1821(h)(4) .............................................. 21

16 U.S.C. § 1853(b)(14) ............................................ 24

16 U.S.C. § 1853(b)(8) ........................................ 18, 24

16 U.S.C. § 1853a(e)(2) ............................................ 21

16 U.S.C. § 1854(d)(2)(B) ......................................... 21

16 U.S.C. § 1862(a)................................................... 21

16 U.S.C. § 1862(b)(2)(E) ......................................... 21

35 U.S.C. § 318(a)..................................................... 29

38 U.S.C. § 1151 ....................................................... 29

OTHER AUTHORITIES

U.S. Const. art. III ..................................................... 9

85 Fed. Reg. 7,414 (Feb. 7, 2020)................. 19, 21, 22

William N. Eskridge Jr., Interpreting Law: A Primer

on How to Read Statutes and the Constitution

(2016) .................................................................... 17

Edwin E. Huddleson, Chevron Under Siege, 58 U.

Louisville L. Rev. 17 (2019).................................. 14

vii

INTEREST OF AMICUS CURIAE

Amicus

curiae

New

England

Legal

Foundation (NELF) is a nonprofit, public interest

law firm, incorporated in Massachusetts in 1977 and

headquartered in Boston.1 NELF’s membership

consists of corporations, law firms, individuals, and

others who believe in its mission of promoting

inclusive 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.

NELF is interested in this case because a

lower federal court has misapplied Chevron U.S.A.,

Inc. v. Natural Res. Def. Council, 467 U.S. 837

(1984), to uphold a federal regulation that burdens

the Atlantic herring fishery, when the relevant

statute does not authorize any such agency action.

NELF is committed to upholding the Constitution’s

separation of powers, reinforced by § 706 of the

Administrative Procedure Act, under which an

independent federal judiciary must say what the law

is and decide whether an administrative agency has

exceeded its delegated powers.

1 Pursuant to Supreme Court Rule 37.6, NELF states that no

counsel for a party authored NELF’s amicus brief, in whole or

in part, and that no person or entity, other than amicus, made

a monetary contribution to the preparation or submission of the

brief.

NELF is also committed to the core principle

of stare decisis, which in this case means applying

the Court’s traditional tools of statutory construction

to ascertain a statute’s meaning. To the extent that

Chevron

contains

language

suggesting

an

interpretive rule to the contrary, the Court should

consider disavowing any such meaning attributable

to that language or, if necessary, disavowing any

freestanding validity to that language altogether.

For these and other reasons discussed below,

NELF believes that its brief will assist the Court in

deciding the issue of so-called Chevron deference

presented in this case.

SUMMARY OF ARGUMENT

The Court should consider clarifying “step

one” of its two-step test, announced in Chevron

U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S.

837 (1984), for determining the validity of a federal

agency’s regulation. In part, Chevron restates “wellsettled principles” regarding the federal judiciary’s

role to “employ traditional tools of statutory

construction,” in order to decide independently

whether Congress has authorized an agency

regulation.

However, Chevron also contains misleading

and unnecessary language suggesting, to the

contrary, that a court should subordinate the

traditional tools of statutory construction to the

untraditional interpretive rule that an agency has

implied plenary powers, unless and until Congress

“has directly spoken to the precise question at issue,”

by literally withholding the disputed regulatory

2

power. Chevron also contains misleading language

suggesting that every purported statutory “silence”

creates a genuine ambiguity for the agency to

resolve.

The lower court certainly read Chevron that

way when it upheld the disputed regulation, despite

all clear textual and contextual cues to the contrary.

Under its hyperliteral reading of Chevron, the lower

court concluded that Congress “silently” authorized

the disputed agency regulation because the statute

failed to literally prohibit that regulation.

To dispel this fundamental confusion, and to

prevent any more erroneous decisions like this one,

the Court should consider, at minimum, disavowing

the lower court’s misreading of Chevron as creating a

hyperliteral interpretive rule that would place a

virtually impossible, and unheard-of, drafting

burden on Congress to take exhaustive steps to

withhold an agency’s regulatory powers, in every

administrative statute. Alternatively, the Court

could disavow any freestanding validity to Chevron’s

misleading language itself.

The Court has

undertaken similar corrective measures in order to

clarify its doctrinal tests in other areas of the law.

Either way, the Court would make clear, once and

for all, that, under Chevron step one, lower courts

must, as always, interpret a statute with a fresh and

independent eye, free of any rogue pro-agency

presumption, by giving effect to the text’s ordinary

meaning, and by drawing reasonable inferences from

statutory context, in order to determine a

regulation’s validity.

3

Undoubtedly, the Chevron Court did not

intend to suggest the upside-down presumption that

an agency has the implied power to regulate an issue

whenever Congress has not literally withheld that

regulatory power. After all, the Court was merely

restating well-settled principles requiring a court to

apply traditional tools of statutory construction. Nor

has the Court recognized any such rogue pro-agency

presumption when it discusses or engages in a

Chevron step-one analysis itself.

However,

Chevron’s misleading language does invite the

misinterpretation that the lower court applied here.

Such an interpretation of Chevron is

insupportable. An agency is a creature of Congress

and can only exercise those powers that Congress

has actually given it. Moreover, both Congress and

the citizenry need to know the legal effect of the

language that Congress adopts, primarily by relying

on the text’s ordinary meaning.

Perhaps

most

importantly,

this

misinterpretation of Chevron would eviscerate

independent judicial review, as it did here. Because

the lower court could not find statutory language

that literally prohibited the regulation, the court

concluded that its interpretive job was done, and

that the Government could take over from there.

As a result, the court lost sight of the ordinary

meaning of the statutory language at issue, which

has nothing whatsoever to do with the Government’s

regulation requiring certain commercial fishing

vessels to fund its federal inspection regime. The

court also repudiated traditional interpretive tools

4

that draw reasonable inferences from statutory

context to explain a purported congressional silence.

According to the court, those tools were too weak and

indirect to satisfy Chevron’s “directly speaking”

requirement.

What’s more, the lower court missed the big

picture. If allowed to stand, the Government’s

(mis)interpretation of the statute would allow the

Government to take the extreme step of requiring

potentially all domestic commercial fishing vessels

within its jurisdiction to fund its inspection regime.

But if Congress had really wanted to delegate such a

vast and unusual power to the Government, it would

have said so, plainly and distinctly. Congress would

not have concealed such a monolithic power in stray

and obscure textual “clues,” scattered here and there

in the statute, as the lower court essentially

concluded.

The lower court apparently concluded that,

under Chevron, every purported statutory silence

creates a genuine ambiguity for the agency to

resolve. This is wrong, because not every purported

silence is ambiguous. As with any other issue of

statutory construction, a court must interpret a

purported silence to decide what it means, if it

means anything at all. If the lower court had

properly “emptied its legal toolkit,” unencumbered

by its misunderstanding of Chevron, it would have

seen that the purported silence carried only one

plausible meaning.

Congress was limiting the

Government’s powers.

5

Sometimes, as in Chevron itself, a court

engages with a statute and uncovers a genuine

ambiguity.

When the Chevron Court referred,

imprecisely, to a “silent or ambiguous” statute, the

Court was apparently generalizing from its own

conclusion that it had found a statutory silence that

was also ambiguous. But that was not the case here.

Nonetheless, the lower court misinterpreted Chevron

as requiring it to relinquish interpretive authority to

the Government, as soon as it found a purported

silence on the face of the statute.

Notably, this Court does not invoke Chevron’s

misleading language, or the pro-agency presumption

that it suggests, when the Court undertakes or

discusses a step-one analysis of a statute. In those

cases, the Court gives effect to the statute’s ordinary

meaning, and it interprets the disputed language in

its context, in order to resolve any purported

ambiguity that would favor the agency. This case

would allow the Court to make express what it has

apparently already done in practice, thereby

clarifying a lower court’s crucial gatekeeping role

under Chevron step one.

6

ARGUMENT

I.

THIS COURT SHOULD CLARIFY THAT

CHEVRON REQUIRES A FEDERAL

COURT, AS ALWAYS, TO APPLY

TRADITIONAL TOOLS OF STATUTORY

CONSTRUCTION

TO

DECIDE

WHETHER

AN

ADMINISTRATIVE

AGENCY

HAS

EXCEEDED

ITS

DELEGATED POWERS.

A.

While Chevron Properly States This

Standard Of Independent Judicial

Review, The Opinion Also Contains

Misleading

And

Unnecessary

Language

Suggesting

The

Untraditional Interpretive Rule,

Applied By The Lower Court, That

Congress Has “Silently” Authorized

An Agency Regulation Whenever It

Has Not Literally Prohibited The

“Precise” Regulatory “Question At

Issue.”

This case presents the Court with the

opportunity to clarify “step one” of its familiar twostep test, announced in Chevron U.S.A., Inc. v.

Natural Res. Def. Council, 467 U.S. 837 (1984), for

determining the validity of a federal agency’s

regulation.2 In part, Chevron restates “well-settled

See Chevron, 467 U.S. at 842-43 (“First, always, is the

question whether Congress has directly spoken to the precise

question at issue. If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of Congress.

If, however, the court determines Congress has not directly

2

7

principles,” id., 467 U.S. at 845, that “[t]he judiciary

is the final authority on issues of statutory

construction,” id. at 843 n.9, and that a court should

“employ traditional tools of statutory construction,”

id., in order to decide whether Congress has

authorized the disputed agency regulation.

Indeed, n.9 of Chevron states all that a federal

court needs to know to undertake a proper

independent analysis of an administrative statute.3

“Even under Chevron, we owe an agency’s

interpretation of the law no deference unless, after

‘employing

traditional

tools

of

statutory

construction,’ we find ourselves unable to discern

Congress’s meaning.” SAS Inst., Inc. v. Iancu, 138 S.

addressed the precise question at issue, the court does not

simply impose its own construction on the statute, as would be

necessary in the absence of an administrative interpretation.

Rather, if the statute is silent or ambiguous with respect to the

specific issue, the question for the court is whether the agency’s

answer is based on a permissible construction of the statute.”).

3 In Chevron n.9, the Court wrote, in full:

The judiciary is the final authority on issues

of statutory construction and must reject

administrative constructions which are

contrary to clear congressional intent. . . . If

a court, employing traditional tools of

statutory construction, ascertains that

Congress had an intention on the precise

question at issue, that intention is the law

and must be given effect.

Id., 467 U.S. at 843 n.9 (citations omitted).

8

Ct. 1348, 1358 (2018) (quoting Chevron, 467 U.S. at

843 n.9) (emphasis added). See also Kisor v. Wilkie,

139 S. Ct. 2400, 2415 (2019) (applying Chevron n.9

to step one of related Auer deference test, and

explaining that “a court must exhaust all the

‘traditional tools’ of construction. . . . Only when that

legal toolkit is empty and the interpretive question

still has no single right answer can a judge conclude

that it is more one of policy than of law.”) (cleaned

up) (quoting Chevron, 467 U.S. at 843 n.9) (emphasis

added).4

However, Chevron also contains misleading

and unnecessary language suggesting, to the

contrary, that a court should subordinate the

“traditional tools of statutory construction” to the

4 The succinct language from Chevron n.9 is consistent with a

federal court’s independent duty, under both Article III of the

Constitution and the Administrative Procedure Act, “to say

what the law is,” Marbury v. Madison, 1 Cranch 137, 177, 5

U.S. 137 (1803), and to “decide all relevant questions of law

[and] interpret . . . statutory provisions, in order to decide

whether to hold unlawful and set aside agency action . . . found

to be . . . in excess of statutory . . . authority.” 5 U.S.C.

§ 706(2)(C).

When a court engages in an independent review of a statute

and decides, as the Court did in Chevron itself, that Congress

has left unresolved an issue of policy, and has delegated the

resolution of that issue to the agency, “[w]e do not ignore

th[ese] [constitutional and statutory] command[s]; we respect

[them.] We give binding deference to permissible agency

interpretations of statutory ambiguities because Congress has

delegated to the agency the authority to interpret those

ambiguities with the force of law.” City of Arlington, Tex. v.

F.C.C., 569 U.S. 290, 317 (2013) (Roberts, C.J., dissenting))

(cleaned up) (emphasis in original).

9

untraditional and insupportable interpretive rule

that an agency has implied plenary powers, unless

and until Congress expressly withholds those

powers. This language also suggests that every

purported statutory “silence” creates a genuine

ambiguity for the agency to resolve:

First, always is the question whether

Congress has directly spoken to the

precise question at issue. . . . If,

however, the court determines Congress

has not directly addressed the precise

question at issue, . . . [i.e.,] if the statute

is silent or ambiguous with respect to

the specific issue, the question for the

court is whether the agency’s answer is

based on a permissible construction of

the statute.

Chevron, 467 U.S. at 842-43 (emphasis added).

The lower court certainly read Chevron that

way when it upheld the disputed regulation, despite

all clear textual and contextual cues to the contrary.5

See Appendix (App.) at 6 (“Th[e] text makes clear the

[Government] may direct vessels to carry at-sea monitors but

leaves unanswered whether the [Government] must pay for

those monitors or may require industry to bear the costs . . . .

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.”) (quoting Chevron, 467

U.S. at 842) (emphasis added); App. at 8 (“[N]either [the

relevant statutory provision] nor any other provision of the Act

imposes a funding-related restriction on [the Government’s]

authority to require monitoring in a plan. That also suggests

the Act permits [the Government] to require industry-funded

monitoring.”) (emphasis added); App. at 12 (“[The statute]

5

10

In particular, the court concluded that, under its

reading of Chevron, Congress “silently” authorized

the disputed agency regulation because the statute’s

text did not “directly sp[eak] to the precise question

at issue,” id., 467 U.S. at 842, by not literally

prohibiting the regulation of that exact issue.6

To dispel the lower court’s fundamental

confusion, and to prevent any more erroneous

decisions like this one, the Court should consider

clarifying Chevron step one. The Court could do this

by disavowing the lower court’s misreading of

Chevron as creating a hyperliteral interpretive rule

that would place a virtually impossible, and

unheard-of, drafting burden on Congress to take

exhaustive steps to limit an agency’s regulatory

powers,

in

every

administrative

statute.

Alternatively, the Court could disavow any

freestanding validity to Chevron’s misleading

language that gave rise to the lower court’s

misunderstanding in the first place. The Court has

undertaken similar corrective measures in the past,

in order to clarify its doctrinal tests in other areas of

the law:

On occasion, a would-be doctrinal rule

or test finds its way into our case law

through simple repetition of a phrase-expressly envisions that [at-sea] monitoring programs will be

created and, through its silence, leaves room for agency

discretion as to the [funding] design of such programs. . . . [T]he

Act contains no bar on industry-funded monitoring

programs[.]”) (emphasis added).

6 See n.5, above.

11

however fortuitously coined. . . . Today

we correct course . . . and indeed

conclude that [the disputed language

from the Court’s prior opinion] has no

proper place in our [applicable]

jurisprudence.

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 531, 548

(2005) (rejecting language from Agins v. City of

Tiburon, 447 U.S. 255, 260 (1980), stating

incorrectly that government regulation of private

property “effects a taking if such regulation does not

substantially advance legitimate state interests[.]”)

(cleaned up). See also Brown v. Davenport, 142 S.

Ct. 1510, 1528 (2022) (“[R]espect for past judgments

also means respecting their limits. This Court has

long stressed that the language of an opinion is not

always to be parsed as though we were dealing with

the language of a statute.”) (cleaned up) (emphasis

added).

Either way, the Court would make clear, once

and for all, that, under Chevron step one, lower

courts must, as always, interpret a statute with a

fresh and independent eye, free of any rogue proagency presumption, by giving effect to the text’s

ordinary meaning, and by drawing reasonable

inferences from its context, in order to determine a

regulation’s validity.

12

B.

The

Rogue

Pro-Agency

Presumption That The Lower

Court Gleaned From Chevron’s

Misleading Language Offends The

Separation

Of

Powers

And

Eviscerates Independent Judicial

Review, By Causing A Court To

Throw In The Interpretive Towel

As Soon As It Sees A Purported

“Silence” On The Face Of A Statute.

Undoubtedly, the Chevron Court did not

intend to suggest an upside-down interpretive rule

that an agency has the implied power to regulate an

issue whenever Congress has “failed” to literally

withhold that regulatory power.7 After all, the

7 It is possible that the Chevron Court inadvertently overstated

a court’s duty to confine itself to the statute’s literal text

because the Court was responding to the lower court’s

misplaced reliance on the statute’s purpose to drive its decision

to invalidate the disputed regulation. See Chevron, 467 U.S. at

841 (“[The D. C. Circuit] reasoned that ‘the purposes of the

[Clean Air Act’s] nonattainment program should guide our

decision here [to strike down the regulation].’”) (quoting

Natural Res. Def. Council, Inc. v. Gorsuch, 685 F.2d 718, 726

n.39 (D. C. Cir. 1982)) (emphasis added).

In fact, the lower court in Chevron acknowledged that neither

the statute’s text nor its legislative history addressed the

disputed definitional question, concerning the application of the

statutory term, “stationary source” of air pollutants, to a Clean

Air Act program for States that had not yet attained federal air

quality standards. See Chevron, 467 U.S. at 841 (“The [lower]

court observed that the relevant part of the amended Clean Air

Act ‘does not explicitly define what Congress envisioned as a

‘‘stationary source,” to which the permit program . . . should

apply,’ and further stated that the precise issue was not

‘squarely addressed in the legislative history.’”) (quoting

13

Chevron Court was merely restating “well settled

principles” that require a court to apply “traditional

tools of statutory construction.” Chevron, 467 U.S.

at 843 n.9, 845.8 Nowhere do those traditional tools

recognize an agency’s presumptive power to regulate

an issue unless Congress literally withholds that

regulatory power. Nor does this Court recognize any

such rogue pro-agency presumption when it

discusses or engages in a Chevron step-one analysis.9

Instead, “[w]e examine . . . arguments about

the [agency’s delegated powers] much as we would

any other about statutory meaning, looking to the

text and context of the law in question and guided by

the traditional tools of statutory interpretation.”

Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894,

Natural Res. Def. Council, 685 F.2d, at 723). Nonetheless, the

lower court concluded that the agency’s resolution of that

definitional gap was “inappropriate,” in light of the statute’s

goals. Chevron, 467 U.S. at 841.

In apparent response to this misplaced purposivism, the

Chevron Court may have unintentionally gone too far in

emphasizing the primacy of the statute’s text. See Chevron,

467 U.S. at 842-43 (i.e., “whether Congress has directly spoken

to” or “directly addressed” “the precise question at issue,” “if

the statute is silent or ambiguous with respect to the specific

issue”). In so doing, however, the Court fortuitously suggested

the hyperliteral interpretive rule that the D. C. Circuit applied

here.

8 See

also Edwin E. Huddleson, Chevron Under Siege, 58 U.

Louisville L. Rev. 17, 22 n.15 (2019) (“Justice Stevens has

commented that his opinion in Chevron was simply a fair

summary of well-settled common law principles of

administrative law.”).

9 See Part I(E) of the Argument, below.

14

1901 (2019).

Those tools give primacy to the

ordinary meaning of a statute’s text, and to

reasonable inferences that a court can draw from

statutory context. “This Court normally interprets a

statute in accord with the ordinary public meaning

of its terms at the time of its enactment. After all,

only the words on the page constitute the law

adopted by Congress and approved by the

President.” Bostock v. Clayton County, Georgia, 140

S. Ct. 1731,1738 (2020). See also Brown v. Gardner,

513 U.S. 115, 120 (1994) (Souter, J., for Court)

(“[T]he [statutory] text and reasonable inferences

from it give a clear answer against the Government,

and that, as we have said [in Chevron], is ‘the end of

the matter.’”) (cleaned up) (invalidating agency

regulation under Chevron step one, while quoting

Chevron, 467 U.S. at 842) (emphasis added).

And yet, the misleading language from

Chevron does invite the misinterpretation that the

lower court applied here, under which Congress

must go out of its way to withhold a regulatory

power in order to avoid remaining fatally “silent” on

that issue. “Of course, that is not the world we

know[,]” Kisor, 139 S. Ct. at 2419, whether in this

Court, in the halls of Congress, or even in the

Constitution itself. See Ry. Labor Executives’ Ass’n

v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir.

1994) (“Were courts to presume a delegation of power

absent an express withholding of such power,

agencies would enjoy virtually limitless hegemony, a

result plainly out of keeping with Chevron and quite

likely with the Constitution as well.”) (emphasis in

original).

15

Such a presumption is insupportable, of

course, because, among other things, an agency is a

creature of Congress and can only exercise those

powers that Congress has actually 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)).

Moreover, a court’s application of such a

hyperliteral and unreal interpretive rule would only

confound Congress’s efforts to draft legislation with

an understanding of the chosen text’s legal

consequences. “What is of paramount importance is

that Congress be able to legislate against a

background of clear interpretive rules, so that it may

know the effect of the language it adopts.” Finley v.

United States, 490 U.S. 545, 556 (1989), superseded

by statute on other grounds, as stated in Exxon Mobil

Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 558

(2005).

Indeed, both Congress and the citizenry need

to know the legal effect of the language that

Congress adopts, primarily by relying on the text’s

ordinary meaning. See Bostock, 140 S. Ct. at 1828

(Kavanaugh, J., dissenting) (“[T]he ‘linchpin of

statutory interpretation is ordinary meaning, for

that is going to be most accessible to the citizenry

16

desirous of following the law and to the legislators

and their staffs drafting the legal terms of the plans

launched by statutes and to the administrators and

judges implementing the statutory plan.’”) (quoting

William N. Eskridge Jr., Interpreting Law: A Primer

on How to Read Statutes and the Constitution 81

(2016) (emphasis in original)). See also Morales v.

Trans World Airlines, Inc., 504 U.S. 374, 383 (1992)

(“[W]e . . . begin with the language employed by

Congress and the assumption that the ordinary

meaning of that language accurately expresses the

legislative purpose.”) (cleaned up); McNary v.

Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991)

(“It is presumable that Congress legislates with

knowledge of our basic rules of statutory

construction[.]”) (emphasis added).

Perhaps

most

importantly,

this

misinterpretation of Chevron would eviscerate

independent judicial review, as it did here, by

causing a court to throw in the interpretive towel as

soon as it sees a purported “silence” on the face of a

statute. See Buffington v. McDonough, No. 21-972,

2022 WL 16726027, at *18-19 (U.S. Nov. 7, 2022)

(Gorsuch, J., dissenting from denial of certiorari)

(“Under a [mistakenly] broad reading of Chevron, . . .

we place a finger on the scales of justice in favor of

the most powerful of litigants, the federal

government, and against everyone else.”). Because

the lower court could not find statutory language

that literally prohibited the regulation, the court

concluded that its interpretive job was done, and

that the agency could take over from there.10

10 See n.5, above.

17

C.

The Lower Court’s Hyperliteral

Reading of Chevron Caused It To

Repudiate The Statute’s Ordinary

Meaning

And

Traditional

Interpretive Tools That Draw

Reasonable

Inferences

From

Statutory Context To Explain A

Purported Silence.

The lower court, laboring under its

hyperliteral reading of Chevron’s “directly speaking”

requirement, lost sight of the ordinary meaning of

the disputed statutory language. The text provides

that the Government may require that federal

observers “be carried on board” domestic commercial

fishing vessels during their fishing trips. 16 U.S.C.

§ 1853(b)(8).11 This laconic phrase, “carried on

Section 1853(b)(8) of the Magnuson-Stevens Fishery

Conservation and Management Act, 16 U.S.C. §§ 1801-1884,

provides, in full:

11

(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-...

(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

18

board,” conveys only one possible meaning. Fishing

vessels may be required to suffer the presence of atsea observers during their fishing trips, and nothing

more. Indeed, the same statutory section refers to

the “quartering of an [at-sea] observer.” Id.12

Therefore, the text leaves nothing to the

Government’s imagination, and it certainly has

nothing to do with the Government’s regulation

requiring certain commercial fishing vessels to pay

federal observers’ daily wages.13 “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.” SAS Inst., 138 S. Ct. at 1355. See

also Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018)

(“[T]he Court need not resort to Chevron deference,

as [the] lower court[ ] ha[s] done, for Congress has

supplied a clear and unambiguous answer to the

interpretive question at hand.”).

And yet the lower court concluded that this

simple statutory phrase, “carried on board,” was too

vague and porous to satisfy Chevron’s purported

requirement that Congress “directly” forbid the

safety of the observer or the safe operation of

the vessel would be jeopardized[.]

16 U.S.C. § 1853(b)(8).

12 See n.11, above.

13 See

85 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”).

19

Government from imposing an industry-funding

requirement.14 The court’s misreading of Chevron

blinded it to the text’s inescapably clear meaning.

Even so, should a court have any conceivable

doubts about what a statute’s text means, a proper

application of Chevron would instruct that court to

remove from its legal 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)

(emphasis added). Again, the lower court dropped

the ball, because it repudiated traditional

interpretive tools that draw reasonable inferences

from statutory context--namely, the expressio unius

canon,15 and the “specific governs the general”

canon16--in order to explain a purported statutory

silence.

14 See n.5 above (quoting App. at 6, 12).

15 See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 80 (2002)

(“[T]he interpretive canon, expressio unius est exclusio alterius,

[means,] “expressing one item of [an] associated group or series

excludes another left unmentioned.”) (cleaned up).

16 See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566

U.S. 639, 645 (2012) (“It is a commonplace of statutory

construction that the specific governs the general. . . . [T]he

canon has full application . . . to statutes such as the one here,

in which a general authorization and a more limited, specific

authorization exist side-by-side. There the canon avoids . . . the

superfluity of a specific provision that is swallowed by the

general one, violating the cardinal rule that, if possible, effect

shall be given to every clause and part of a statute.”) (cleaned

up) (emphasis added).

20

Relying on its own precedent, the court

dismissed, categorically, the expressio unius canon

as being too weak and indirect a tool to establish

that Congress “directly spoke” to the regulatory

issue under Chevron. See App. at 9. See also

Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692, 697

(D.C. Cir. 2014) (“The expressio unius canon is a

feeble helper in an administrative setting, where

Congress is presumed to have left to reasonable

agency discretion questions that it has not directly

resolved. . . . [The rule] offers too thin a reed to

support the conclusion that Congress has clearly

resolved an issue.”) (cleaned up).

The lower court, having made up its mind that

the expressio unius canon was no match for

Chevron’s strict interpretive rule, then engaged in a

doomed application of the canon anyway. See App. at

9-12.

Significantly, the statute contains three

detailed sections, inapplicable here, that either allow

or require certain commercial fisheries to pay for atsea observers, in certain narrowly defined contexts.17

See 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 limited the extent to which

industry funding can deplete a fishing vessel’s revenues. See

16 U.S.C. § 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 the

Government’s concession that its regulation would deplete

approximately 20% of the annual returns of the affected

Atlantic herring fishery. See 85 Fed. Reg. at 7,418.

17

21

Unsurprisingly, the court went out of its way,

with hair-splitting zeal, to show that those three

other statutory sections “do[ ] not speak directly to

this [regulatory] point, nor do[ ] [they] . . . say

anything about who may fund observers.” App. at 9

(emphasis added). Similarly, the court concluded

that “‘the specific governs the general’ [canon] . . . is

unhelpful to appellants in this context because there

is no relevant ‘conflict’ between statutory terms that

do not address the same subject[.]” Id. (emphasis

added).

However, a court unhindered by the lower

court’s hyperliteral reading of Chevron would surely

have applied these interpretive tools to reach the

opposite conclusion.

Congress’s inclusion of

industry-funding language in certain narrow

statutory sections must mean that its omission of

any such language in the broadly worded section in

dispute was a deliberate policy choice, signaling “the

end of the matter.” Chevron, 467 U.S. at 842. See

also Badgerow v. Walters, 142 S. Ct. 1310, 1318

(2022) (“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.”) (cleaned up).

In other words, a correct application of these

interpretive tools would show that Congress did not

permit the Government to treat industry funding of

at-sea observers as an implied cost of complying with

that inspection regime, contrary to the views of the

Government and the D. C. Circuit alike.18 After all,

See 85 Fed. Reg. at 7,422 (“The requirement to carry

observers [at sea], along with many other requirements under

18

22

Congress deemed it necessary to address that very

funding issue, and in some detail, in those three

other sections. Therefore, the Government was not

at liberty to tease an industry-funding requirement

out of the statute’s spare “carried on board”

language.

“[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).

Any reading 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).

What’s more, the lower court’s hyperliteral

reading of Chevron caused it to miss the big picture.

If

allowed

to

stand,

the

Government’s

(mis)interpretation of Congress’s “carried on board”

language would allow the Government to take the

extreme step of requiring potentially all domestic

commercial fishing vessels within its jurisdiction to

fund its inspection regime. This is because the

statute permits the Government to require “[a]ny

fishery management plan which is prepared by any

[Regional Fishery Management] Council, or by the

Secretary [of Commerce], with respect to any

the Magnuson-Stevens Act, includes compliance costs on

industry participants.”); App. at 7-8 (“When an agency

establishes regulatory requirements, regulated parties

generally bear the costs of complying with them.”).

23

fishery,” to carry on board a federal observer. 16

U.S.C. § 1853(b)(8) (emphasis added).19

While the regulation applies only to the

Atlantic herring fishery,20 a decision upholding that

regulation’s injection of a funding requirement into

the statutory “carried on board” language would

permit the Government to require potentially “any

fishery” falling under the statute to pay for at-sea

observers. But if Congress had really wanted to

delegate such a vast and unusual power to the

Government, it would have said so, plainly and

distinctly, and in the statutory section itself, as it did

in those three other, far narrower sections of the

statute that did authorize industry funding.21

Congress would not have concealed such a

monolithic power in stray and obscure textual

“clues,” scattered here and there in the statute, as

the lower court essentially concluded here.22 See

19 See n.11, above, for the full text of this provision.

20 See n.13, above.

21 See n.17, above.

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

22

24

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).

D.

Contrary To The Lower Court’s

Misreading Of Chevron, Not Every

Purported

Statutory

Silence

Creates A Genuine Ambiguity For

The Agency To Resolve.

The lower court apparently concluded that,

under Chevron, every purported statutory silence

creates a genuine ambiguity for the agency to

resolve.23 This is incorrect. Not every purported

silence is ambiguous.

The two words are not

necessarily synonymous. As with any other issue of

statutory construction, a court must interpret a

purported silence to decide what it means, if it

means anything at all. “An inference drawn from

congressional silence certainly cannot be credited

when it is contrary to all other textual and

contextual evidence of congressional intent.” Burns

v. United States, 501 U.S. 129, 136 (1991), abrogated

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).

23 See n.5, above.

25

on other grounds, as recognized in Dillon v. U.S., 560

U.S. 817, 820 (2010).

If the lower court had properly emptied its

legal toolkit, unburdened by its misunderstanding of

Chevron, it would have seen that the purported

silence carried only one plausible meaning.

Congress was limiting the Government’s powers. “A

statutory [silence] that may seem ambiguous in

isolation is often clarified by the remainder of the

statutory scheme because only one of the permissible

meanings produces a substantive effect that is

compatible with the rest of the law.” Util. Air

Regulatory Group v. E.P.A., 573 U.S. 302, 321 (2014)

(cleaned up).

Sometimes, however, as in Chevron itself, a

court engages thoroughly with a statute and

uncovers a genuine ambiguity. See Chevron, 467

U.S. at 845 (“[W]e agree with the Court of Appeals

that Congress did not have a specific intention on

[the interpretive issue.]”). When the Chevron Court

referred, loosely and imprecisely, to a “silent or

ambiguous” statute, id. at 843, the Court was

apparently generalizing from its own conclusion that

the statutory silence it confronted, concerning a

definitional gap in a technical statutory term, was

truly ambiguous.24 “We find that the legislative [text

and] history as a whole [are] silent on the precise

issue before us.” Id., 467 U.S. at 862. But that was

not the case here.

24 See n.7, above, for a more detailed discussion of Chevron.

26

Nonetheless, the lower court misinterpreted

Chevron to equate every purported silence with a

genuine ambiguity for the agency to resolve.25 In its

erroneous view, Chevron instructed it to relinquish

interpretive authority to the Government as soon as

it saw a purported gap in the statutory words

“carried on board,” with respect to the industryfunding issue.

E.

This Court Does Not Invoke

Chevron’s Misleading Language, Or

The Pro-Agency Interpretive Rule

That It Suggests, When The Court

Undertakes Or Discusses A StepOne Analysis Of An Administrative

Statute.

Notably, this Court does not invoke Chevron’s

misleading language, or the pro-agency interpretive

rule that it suggests, when the Court undertakes or

discusses a step-one analysis of a statute. Instead,

the Court invokes “traditional tools of statutory

construction” in order to resolve a purported

statutory ambiguity against the Government.26

25 See n.5, above.

See Kisor, 139 S. Ct. at 2415 (quoting “traditional tools of

statutory construction” language from Chevron n.9 when

discussing step one of related Auer deference); SAS Inst., 138 S.

Ct. at 1358 (quoting same language from Chevron n.9, while

applying traditional interpretive canons to conclude that

statute unambiguously prohibited agency regulation); Brown v.

Gardner, 513 U.S. at 120 (engaging in Chevron step-one

analysis to conclude that “the text and reasonable inferences

from it give a clear answer against the Government, and that,

as we have said [in Chevron], is ‘the end of the matter.’”)

(cleaned up) (quoting Chevron, 467 U.S. at 842).

26

27

Perhaps the best evidence of Chevron step

one’s limited and traditional meaning is a nearly

contemporaneous opinion of the Court, written by

Justice Stevens himself, the author of Chevron. See

I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987). In

that case, Justice Stevens concluded, for the Court,

that the statute at issue unambiguously prohibited

the agency’s regulation.27 He gave effect to the

statute’s plain meaning, and he applied the expressio

unius canon, to conclude that the agency had

wrongfully read language into the disputed statutory

provision that Congress had included in another,

related provision.28 Notably, Justice Stevens ended

the opinion by quoting only from Chevron n.9, in full,

to reinforce a federal court’s independent and

exclusive duty to apply traditional tools of statutory

construction, in order to determine a regulation’s

validity.29

In Cardoza-Fonseca, the Immigration and Naturalization

Service had interpreted the version of 8 U.S.C. § 1158(a) then

in effect, which gave the Attorney General the discretion to

grant asylum to an alien who has “a [subjective] well-founded

fear of persecution,” as requiring an alien to satisfy the more

demanding, objective showing required under a related

provision then in effect, 8 U.S.C. § 1253(h) (requiring Attorney

General to delay the deportation of an alien who can show his

“life or freedom would be threatened.”). See Cardoza-Fonseca,

480 U.S. at 423-24.

27

28

See Cardoza-Fonseca, 480 U.S. at 431-32.

29 See id. at 446–48 (“The question whether Congress intended

the two standards to be identical is a pure question of statutory

construction for the courts to decide. Employing traditional

tools of statutory construction, we have concluded that Congress

did not intend the two standards to be identical. In Chevron

28

Other decisions of the Court also indicate the

Court’s apparent disavowal of Chevron’s misleading

language. Indeed, the Court’s opinions in SAS Inst.

and Brown, cited in n.26 above, are each a master

class in how a federal court should undertake a

proper Chevron step-one inquiry.30 In each of those

opinions, the Court rolled up its sleeves and engaged

rigorously with the text, context, and structure of the

disputed statute, while applying traditional canons

of statutory construction, to conclude that the

statute unambiguously precluded the agency

regulation.31 And, unlike the lower court in this

[n.9], we explained that ‘[t]he judiciary is the final authority on

issues of statutory construction . . . . If a court, employing

traditional tools of statutory construction, ascertains that

Congress had an intention on the precise question at issue, that

intention is the law and must be given effect.’”) (cleaned up)

(quoting Chevron, 467 U.S. at 843 n.9) (emphasis added).

In Brown, the Court had to decide whether a veteran’s

statutory right of recovery for an “injury” resulting from

treatment by the Bureau of Veterans Administration (VA),

under the version of 38 U.S.C. § 1151 then in effect, allowed the

VA to require the claimant to show fault on the part of the VA

in causing the injury. See Brown, 513 U.S. at 116. In SAS

Inst., the Court had to decide whether a section of the statute

creating a right of inter partes review before the Patents and

Trademarks Office (PTO), 35 U.S.C. § 318(a), gave the PTO the

discretion to decide only certain claims raised by a claimant, or

whether, instead, the text required adjudication of all claims.

See SAS Inst., 138 S. Ct. at 1352-53.

30

31 See Brown, 513 U.S. at 118 (applying presumption that the

same word should have the same meaning throughout a

statute); id. (considering consistent use of word “injury”

without fault in analogous statutes); id. (applying rule of

ejusdem generis where term “injury” appeared, in veterans

benefits statutes, in series with other terms that also precluded

a showing of fault on part of the VA); SAS Inst., 138 S. Ct. at

29

case, the Court in each of those cases applied the

expressio unius canon to conclude that Congress’s

purported “silence” on the disputed interpretive

issue must have been a deliberate policy choice,

which the agency must honor.32

This case would allow the Court to make

express what it has apparently already done in

practice, by disavowing the lower court’s hyperliteral

misinterpretation of Chevron’s misleading language,

or by disavowing that misleading language

altogether. Either way, the Court could put a stop to

erroneous decisions, like this one, and reinforce a

lower court’s crucial gatekeeping role, under

Chevron step one, to ensure that the Government

has not 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.

1354-55 (adhering to statute’s plain meaning); id. at 1355-57

(examining statute as a whole to identify several other ways in

which Congress consistently gave priority to claimant’s

petition, and not to PTO’s prosecutorial discretion).

See Brown, 513 U.S. at 120 (noting that “reference to

claimant’s fault in a statute keeping silent about any fault on

the VA’s part invokes the rule [of expressio unius]”) SAS Inst.,

138 S. Ct. at 1355 (contrasting inter partes statute with earlier

ex parte reexamination statute, which gives PTO prosecutorial

discretion, and observing that “Congress’s choice to depart from

the model of a closely related statute is a choice neither we nor

the agency may disregard.”).

32

30

CONCLUSION

For the reasons stated above, NELF

respectfully requests that this Court reverse the

judgment of the Court of Appeals for the D. C.

Circuit.

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

July 20, 2023

31