Docket: 22-451 amicus New England Legal Foundation Certificate of Word Count
Ben Robbins Docket Summary
Loper Bright Enterprises, et al. v. U.S. Secretary of Commerce, et al. (United States Supreme Court, certiorari stage)
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 and related expenses of federal inspectors, or “observers,” whom the fishing vessels must quarter and accommodate during their fishing trips. In the agency’s final rule, the National Marine Fisheries Service estimated that an at-sea observer would cost a herring boat $710 per day and would reduce a boat’s annual financial return by approximately 20%. 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. 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 observers.
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.
In its amicus brief supporting the petitioners’ petition for certiorari, NELF argues that the Supreme Court should take the case to decide whether Congress has “silently” authorized the National Marine Fisheries Service (NMFS) to require 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 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 at-sea 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. 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 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 and related expenses. Chevron does not direct a federal court to defend an 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.
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 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.