'A post-Chevron world': DC Circuit wrestles with agency authority in fishing boat spat

WASHINGTON (CN) — A D.C. Circuit panel grappled Monday with the fallout from the Supreme Court’s recent decision to overturn a longstanding legal doctrine which allowed federal judges to defer to a government agency’s interpretation of a challenged statue.

The high court ruled 6-3 in Loper Bright Enterprises v. Raimondo that the doctrine, known as Chevron deference, should be overturned and that federal judges themselves should instead “exercise their independent judgment” when an agency oversteps its authority.

That case was originally argued before the D.C. Circuit in 2021, the appellate circuit that deals the most with challenges against federal agencies such as the Environmental Protection Agency and, in this case, the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service.

In its decision to overturn Chevron , the high court remanded the case to the three-judge panel to reassess claims by a coalition of fishing companies that the government was wrong to require they pay the wages of independent “at-sea monitors.”

The panel, made up of Chief U.S. Circuit Judge Sri Srinivasan, Judith Rogers and Justin Walker, grilled attorneys representing the fishing companies and the government for over two hours to determine how they should exercise their own judgment.

Ryan Mulvey, of the Cause of Action Institute, argued on behalf of the fishing companies that, in a post-Chevron world, the relevant Magnuson-Stevens Fisher Conservation and Management Act must have explicit language authorizing the requirement.

He suggested the panel should primarily rely on the statute’s text, before considering the statute’s context and history. In that approach, Mulvey said, the statute only requires fishing vessels to “carry and quarter” the monitors, with nothing on their payment, which he and the judges repeatedly referred to as a “cost.”

Rogers, a Bill Clinton appointee, asked whether the panel should accept that argument to mean that a fishing vessel should provide only what is required in the statute, and that anything else should not be covered by a “necessary and appropriate” catch-all provision.

She raised a hypothetical that, under Mulvey’s reasoning, a fishing vessel would not be required to provide certain things like a comfortable bed, blankets, healthy meals or a second pillow to a monitor with a sinus condition, unless expressly stated in the statute.

That argument gave both the courts and Congress very little wiggle room in either of their functions, she said.

“All I’m trying to understand is the extent to which you’re reading the Supreme Court’s remand to this court to require, in the absence of Chevron , that the only way a court could conclude that the challenged cost is authorized is if Congress expressly says you, the fisheries, shall pay the annual salary,” Rogers said.

She asserted that, as she read the Supreme Court’s decision, it was clear that she and her colleagues could still apply the “usual canons” of interpreting a statute, whether they found the statute granted explicit authority or that authority was ambiguous.

Srinivasan, a Barack Obama appointee, agreed, saying the high court’s decision only foreclosed judges from giving an agency the “the benefit of doubt” in ambiguous situations.

Instead, judges just have to “do the work” themselves to interpret how a law is best read, and can decide it is best read to accomplish the challenged result, even without explicit language.

Mulvey maintained his position, noting the government had failed to cite where it received such authority.

“If the government had met its burden to find statutory support for the legality of industry funding, we wouldn’t be here now, and the Supreme Court wouldn’t have gotten rid of Chevron, ” Mulvey said.

Walker, a Donald Trump appointee who dissented in the original case in favor of the fishing companies, was receptive to Mulvey’s argument, raising several hypotheticals with Justice Department attorney Daniel Halainen.

In one, Walker asked whether an agency like the Federal Aviation Administration had the authority to force airlines to “carry” air marshals and pay their wages.

Halainen said that the FAA would not, as the marshals are government employees and thus must be paid by the government. He clarified that the distinction in Monday’s case was because the monitors are independent and are merely onboard to collect scientific data meant to maintain the local fisheries.

Following the Supreme Court’s decision overturning Chevron, legal experts expressed concern that the decision would make the high court the ultimate arbiter of all federal regulations.

While the D.C. Circuit’s approach on Monday suggested a desire to grant agencies some amount of leeway in interpreting their authority, it is yet unclear whether the high court will take that approach.

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