Sunday, March 19, 2023

Petition for Writ of Certiorari in NonTax Case Raising Issue of Continued Viability of Chevron (3/19/23; 4/30/23))

On March 24, 2023, the Supreme Court will consider in conference the petition for certiorari in Loper Bright Enterprises, Inc. v. Raimondo, 45 F. 4th 359 (D.C. Cir. 2022), here. The docket entries on the Supreme Court site are here and on the SCOTUSblog site are here.  

Revised 4/30/23 2:00pm: The order list for 4/24/23, here, did not include any action on the petition for Loper Enterprises. The petition has now been distributed for conference five times -- the original time on 3/31/23 and then by relisting for conferences on 4/3/23, 4/14/23, 4/21/23, and 4/28/23. Supreme Court pundits would jump to speculations about four conference considerations without action, but I am not a Supreme Court pundit and, in any event, don't like speculations on such scant data coupled with scant expertise. However, those wanting to view the data and potential correlation of relists of petitions and eventual grant of certiorari should read Ralph Mayrell & John Elwood, The statistics of relists over the past five terms: The more things change, the more they stay the same (SCOTUSblog 1/4/22), here, which summarizes the data:

While the justices grant only the tiniest percentage of petitions – about 1% of all petitions and about 4% of petitions filed by paying petitioners – relisted cases fare far, far better. For the court’s 2016 to 2020 terms, between 31% and 43% of petitions that were relisted at least once were eventually granted review. And between 66% and 75% of all cases granted certiorari were relisted at least once. The odds vary a bit from year to year, and grants among relists are recently on an upswing, but the basic truth remains: The justices mostly grant cases that they have relisted, and relisted cases are far more likely to be granted.
The questions presented by Loper in its petition, here (with JAT insertions in brackets to help understand them):

          1. Whether, under a proper application of Chevron, the MSA [the statute] implicitly grants NMFS [the agency] the power [by regulation] to force domestic vessels to pay the salaries of the monitors they must carry [to insure compliance with  regulations].

          2. Whether the Court [(i)] should overrule Chevron or, [(ii)] at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency. 

In the Solicitor General’s Brief in Opposition, here, the Questions as stated by the Petitioner are conflated into a single Question Presented with some :

          Whether the court of appeals erred in holding that the National Marine Fisheries Service was acting within the scope of its delegated statutory authority under the [Act] when the agency adopted a rule in 2020 under which certain vessels fishing in the Atlantic herring fishery may be required to hire third-party observers, who are carried on the boats to collect data for fishery conservation and management purposes.

I will not try to plumb the depth of the nuance the SG introduced with its framing of the Question Presented because it is not necessary for this blog entry.

Although I have no special knowledge about that agency’s rulemaking processes, the agency’s Final Rule went through notice and comment and apparently was a regulation or regulation-equivalent for Chevron purposes. At least the lower courts felt it qualified the for Chevron Framework which generally requires notice and comment regulations.

So the question was whether the alleged silence in the statute permitted the courts to assume a delegation to the agency of interpretive rulemaking authority. Note that I call it interpretive rulemaking authority rather than legislative rulemaking authority. The briefs do not directly raise the question of whether the rule was interpretive or legislative, but the SG’s brief infers interpretive rulemaking authority in arguing the Chevron reasoning of political accountability (p. 27):

Regulated entities and others routinely rely on agency interpretations that courts have upheld under the Chevron framework. By centralizing interpretive decisions in agencies supervised by the President, Chevron also promotes political accountability, national uniformity, and predictability, and it respects the expertise agencies can bring to bear in administering complex statutory schemes.

With that introduction, the parties engage over the following issues as I formulate them.

1. Whether the statutory text itself does or does not permit the agency interpretation at something like a predicate for application of the Chevron Framework (the statute forecloses application one way or the other of the Chevron Framework)? This is the question of whether the statute’s text and context is sufficient to permit the statute to be ambiguous, a predicate for Chevron, at least by Chevron Step One. If the Petitioner or the SG arguments are correct that the statute is not ambiguous (whichever way that cuts), the case does not raise a Chevron issue and Supreme Court review of the continued viability and application of Chevron is not presented.

Actually, the preceding statement is a bit of an overstatement. The issue as stated can be resolved only by addressing the level of ambiguity required to invoke Chevron. As with several issues under Chevron (most prominently the concept of a reasonable or permissible interpretation), there is no litmus test for what is ambiguous. I think we may be in “I know it when I see it” territory here.

Assuming that the Supreme Court believes on consideration of certiorari that the statute is sufficiently ambiguous to invoke Chevron, then the next question is 

2. whether the agency interpretation is within the scope of the ambiguity so that the Chevron Framework can be invoked to get to Step Two. The D.C. Circuit held that the interpretation was reasonable but did not state whether it was (i) the better interpretation (which is by definition reasonable and deference is not outcome determinative) or (ii) not the better interpretation but a reasonable one (the only circumstance where deference is potentially outcome determinative).

The big issue, of course, is Justice Gorsuch’s “elephant in the room” slogan.  Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016), here (lone concurring opinion to his own panel opinion). That is the continued viability of the Chevron Framework. It is that issue, I think, that spawned the plethora of amici briefs—14 in total, all supporting the petition for writ of certiorari. (The amicus brief for Advancing American Freedom, here, actually claimed to support the petition and one of the other amicus briefs supporting the petition, which struck me as a bit odd.) The amicus briefs are generally and perhaps exclusively from right-wing and libertarian-type think tanks and seem to deploy copious political rhetoric and sloganeering to attack the administrative state as to which Chevron seems to be a whipping boy (along with the IRS).  (One amicus brief was from the West Virginia Attorney General and 17 other states which for present purposes might make them in their leanings indistinguishable from the think tanks.) For some of my musings on the value (or waste) of amicus briefs, see On Supreme Court Oral Argument in In Re Grand Jury On Issue of Principal or Significant Purpose for Attorney-Client Privilege (Federal Tax Procedure Blog 1/10/23; 1/11/23), here; and for the ultimate resolution of the case spawning those musings, see Supreme Court Dismisses Attorney-Client Privilege Case as Improvidently Granted (Federal Tax Procedure Blog 1/23/2023), here.

I make no prediction as to whether the Court will grant the petition, but if it does not, I suspect we will get a dissent from Justice Gorsuch.

JAT Notes:

1. If the Court were to reverse Chevron (and its post-Chevron permutations in the lower courts), that would be a major development. The caveat there is that my research of the cases, hardly definitive but I think sufficiently representative, indicates that, without Chevron deference, the outcomes would not be materially changed. See Chevron Step Two Reasonableness and Agency Best Interpretations in Courts of Appeals (Federal Tax Procedure Blog 2/9/23), here; and Is Chevron on Life Support; Does It Matter? (Federal Tax Procedure Blog 4/2/22; 4/3/22), here. In other words, deferring to reasonable interpretations includes: (i) interpretations which are the best or better interpretation even though unstated; and (ii) interpretations that are not the best or better interpretation whether stated or not.  The space occupied by category (ii) is slim; the space occupied by category (i) is not deference even if the court stops at finding only that the interpretation is reasonable.

2. If the Court were to reverse Chevron and its permutations alone, that might leave in place pre-Chevron deference which was not materially different from Chevron except it would take out the Chevron Two-Step. As with Chevron, the pre-Chevron Courts only deferred when the agency interpretation was reasonable. So, if the Court were to want to eliminate deference altogether, it would need to eliminate the earlier deference regimes.

3. Eliminating Chevron, its permutations, and the earlier deference regimes would not eliminate Skidmore respect which, although frequently called deference, is not deference but an interpretive tool to determine the best interpretation (requiring no deference). See Really, Skidmore "Deference?" (Federal Tax Procedure Blog 5/31/20; 2/14/21), here.

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