March 30, 2023 — The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
This week’s update will be brief because of the press of business in my day job. The likeliest grant out of last week’s relists got the nod: The Supreme Court will decide in Acheson Hotels, LLC v. Laufer whether “testers” under the Americans with Disabilities Act have constitutional standing to challenge the ADA compliance of hotels they don’t plan to visit. But all was not sweetness and light. The court denied review to five-time relist Donziger v. United States, involving a separation of powers challenge to the appointment of private lawyers to prosecute a contempt of court. Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, dissented from the denial of review.
That brings us to this week’s sole new relist: Loper Bright Enterprises v. Raimondo. The Magnuson-Stevens Act governs the management of fisheries in federal waters and provides that the National Marine Fisheries Service may require vessels to carry federal observers onboard to enforce agency regulations to prevent overfishing. The National Marine Fisheries Service construed the governing statute to allow it to require industry to pay the salaries of those monitors. A divided panel of the U.S. Court of Appeals for the D.C. Circuit held that the statute was reasonably read to allow the agency to require industry to pay the cost of federal monitors. In dissent, Judge Justin R. Walker wrote that “Congress unambiguously did not” authorize the agency to make fishermen “pay the wages of federal monitors who inspect them at sea.”
Before the Supreme Court, petitioners, a group of fishing companies, argue first that under a proper application of Chevron U.S.A. v. Natural Resources Defense Council, the Magnuson-Stevens Act does not grant the agency the power to require domestic vessels to pay the salaries of the monitors; they argue that while the agency is authorized to require monitors, it is silent about requiring industry to pay for them. But in addition to that plain-vanilla administrative law question, the petition has a second question that is a potential blockbuster: Whether the court should overrule Chevron or at least clarify whether statutory silence about the matter of payment constitutes an ambiguity requiring deference to the agency. The Chevron doctrine calls on courts to defer to federal agencies’ interpretations of ambiguous laws. Critics argue that this gives unaccountable bureaucrats too much power. Enough people think this case may have legs that a whopping fourteen amicus briefs were filed supporting the petition.
I hate to read too much into subjective impressions, but the government’s brief in opposition seems to me to have a tone that suggests that it is resigned to the fact that the court will grant review, at least on the narrower issue. But next term will become a lot more interesting if the court grants on the broader issue of whether to overrule Chevron. Tune in Monday!
This post may have been fairly plain, but I just wanted to point out that at least I made it all the way through without any bad fish puns. I wouldn’t be cod dead doing that.