Clausen Miller Files SCOTUS Amicus Brief on behalf of the Defense Research Institute in Loper
Clausen Miller shareholder Melinda Kollross and partner Don Sampen recently prepared and filed an amicus brief in the United States Supreme Court at the request and on behalf of the DRI Center for Law and Public Policy. The issue is whether an administrative agency, the National Marine Fisheries Service, had the authority under applicable legislation to promulgate a regulation for implementing an industry-funded monitoring program applicable to certain fisheries. Specifically, the regulation would require fishing boat owners to carry on board, and pay the salaries of, monitors hired to collect data on fishing conditions. The agency estimated the cost to the owners would reduce annual returns by about 20 percent.
The amicus brief urges that the authority of the agency should be tested under the “major questions doctrine” rather than the traditional “Chevron doctrine.” The Chevron doctrine limits judicial review of an agency’s actions to determining whether Congress has spoken clearly on a particular issue and, if not, then deciding whether the agency’s action is reasonable. Under the major questions doctrine, by contrast, a court first looks to determine whether the agency’s action is “extraordinary,” and, if so, whether Congress has provided clear authorization. In the absence of such authorization, the agency’s action is deemed invalid.
The case is Loper Bright Enterprises, et al. v. Gina Raimondo, Secretary of Commerce, et al., No. 22-451. Melinda Kollross chairs Clausen Miller’s Appellate & Trial Monitoring Practice Group. Don Sampen is a partner in the Group. The amicus brief was filed on July 13, 2023.