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Supreme Court will consider major case on power of federal regulatory agencies

Two people pulling a net of fish from the water.

Nearly 40 years ago, in Chevron v. Natural Resources Defense Council, the Supreme Court ruled that courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. On Monday, the Supreme Court agreed to reconsider its ruling in Chevron.  

The question comes to the court in a case brought by a group of commercial fishing companies. They challenged a rule issued by the National Marine Fisheries Service that requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans.

Relying on Chevron, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected the companies’ challenge to the rule. Judge Judith Rogers explained that although federal fishery law makes clear that the government can require fishing boats to carry monitors, it does not specifically address who must pay for the monitors. Because the NMFS’s interpretation of federal fishery law as authorizing industry-funded monitors was a reasonable one, Rogers concluded, the court should defer to that interpretation.  

The fishing companies came to the Supreme Court in November, asking the justices both to weigh in on their challenge to the rule and to overrule Chevron (or, the petition suggested, clarify that when a law does not address “controversial powers expressly but narrowly granted elsewhere in the statute,” there is no ambiguity in the statute, and therefore no deference is required). After considering the case at five consecutive conferences, the justices agreed to take up only the second question, on the Chevron doctrine.

Some members of the court’s conservative majority have been critical of the Chevron doctrine in recent years. Justice Clarence Thomas has been among the doctrine’s most vocal critics, arguing in a concurring opinion in 2015 that Chevron deference “wrests from Courts the ultimate interpretative authority ‘to say what the law is,’ and hands it over to” the executive branch. He has been joined by Justice Neil Gorsuch, who in a dissent from the denial of review last fall argued that the court “should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”

The case, Loper Bright Enterprises v. Raimondo, is likely to be argued in the fall, with a decision to follow sometime in 2024. Justice Ketanji Brown Jackson recused herself from the case, presumably because she participated in the oral argument in the case while she was a judge on the D.C. Circuit.

In Murray v. UBS Securities, the second case granted on Monday’s order list, the justices will consider the interpretation of the whistleblower protection provision of the Sarbanes-Oxley Act, which bars publicly traded companies from discriminating against employees who report wrongdoing. Specifically, is the employee required to show that the employer intended to discriminate against him because of his whistleblowing? Or is it instead enough for the employee to show that his whistleblowing was a contributing factor in the employer’s action against him, at which point the employer then has the burden to show that it would have taken the action anyway?  

The question comes to the court in the case of Trevor Murray, a research strategist at UBS Securities who was fired after he reported efforts to improperly influence his reports to his supervisor. A jury ruled for Murray and awarded him back pay and compensatory damages, but the U.S. Court of Appeals for the 2nd Circuit reversed. In its view, the jury should have been instructed that Murray had to prove that UBS fired him because it intended to retaliate against him. 

The justices’ next regularly scheduled private conference is Thursday, May 11, with orders from that conference expected on Monday, May 15.

This article was originally published at Howe on the Court

Recommended Citation: Amy Howe, Supreme Court will consider major case on power of federal regulatory agencies, SCOTUSblog (May. 1, 2023, 11:54 AM),