Last Friday, the U.S. Supreme Court agreed to hear a second case, Relentless, Inc. v. U.S. Department of Commerce, in which the question presented is whether the Court should overrule its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.  That decision produced what became known as the “Chevron framework”–the two-step analysis that courts typically invoke when reviewing a federal agency’s interpretation of a statute.  In May 2023, the Supreme Court granted the certiorari petition filed in Loper Bright Enterprises v. Raimondo in which the petitioners are also urging the Court to overrule Chevron.

Both cases involve a regulation of the National Marine Fisheries Service (NMFS) that requires certain vessels to pay the salaries of the federal observers that they are required to carry.  The regulation implements the Magnuson-Stevens Act which authorizes the NMFS to require fishing vessels to carry federal observers.  In both cases, the petitioners are owners of fishing vessels who challenged the NMFS regulation as exceeding the agency’s authority under the MSA.  The district court in each case, applying the Chevron framework, upheld the NMFS regulation.  In Loper, a divided D.C. Circuit panel affirmed the district court and in Relentless, a unanimous First Circuit panel affirmed the district court.

It has been suggested that the Supreme Court granted the certiorari petition in Relentless to allow Justice Jackson to participate in the decision in that case.  Justice Jackson recused herself from Loper because it arose out of the D.C. Circuit, on which she previously served before becoming a Supreme Court Justice.

In its order granting the certiorari petition in Relentless, the Court directed the Clerk “to establish a briefing schedule that will allow this case to be argued in tandem with [Loper] in the January 2024 argument session.”  While a date for oral argument has not yet been set in Loper, this directive would indicate that the Court plans to hear oral argument in both cases in January 2024. 

In June 2023, we released an episode of our Consumer Finance Monitor Podcast, “A Look at the current challenge to judicial deference to federal agencies and what it means for the consumer financial services industry.”  Our special guest for the episode was Craig Green, Professor, Temple University School Of Law.  To listen to the episode, click here.

On September 7, 2023, at the ABA Business Law Section Fall Meeting in Chicago, I moderated a program, “U.S. Supreme Court to Revisit Chevron Deference: What the SCOTUS Decision Could Mean for CFPB, FTC, and Federal Banking Agency Regulations.”