The U.S. Supreme Court’s decision to hear a petition (docket 22-451) in a maritime case (see 2305010058) could put the Chevron doctrine on “death watch,” Free State Foundation President Randolph May blogged Tuesday. “For over a decade, I have suggested that the Chevron doctrine is in tension with fundamental separation of powers principles,” May wrote: “Now, the Supreme Court has agreed to consider overruling Chevron ‘or at least clarify’ that agency interpretations are not entitled to deference in some instances of ‘statutory silence.’ With a Court majority that is more attuned -- and devoted to -- foundational separation of powers principles, the Supreme Court's coming reconsideration of Chevron is welcome.” Experts including May have noted the evolving major questions doctrine is replacing Chevron as a test for when the courts should give regulatory agencies deference (see 2302080064). “If Chevron is overturned or even narrowed meaningfully, one consequence is likely to be curbing the power of the administrative state,” May wrote. Doing so may also “force Congress to take more responsibility for writing laws that more specifically delimit agency actions -- that is, to write less ambiguous laws,” he said.

The Supreme Court granted the Nov. 10 petition (docket 22-451) of a group of vessel owners challenging the authority of the National Marine Fisheries Service (NMFS) under the Magnuson-Stevens Act (MSA) to require them to pay the salaries of the federal observers they must carry on board to enforce the agency’s regulations. It's a case that could have broad implications for the deference afforded agencies to properly interpret and enforce the federal statutes they have authority over. The petition in Loper Bright Enterprises et al v. Raimondo et al, asked whether, under a “proper application” of Chevron USA v. Natural Resources Defense Council, the MSA implicitly grants NMFS the power to force domestic vessels to pay the salaries of the monitors they must carry. It also asked whether SCOTUS should “overrule” Chevron to “at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” Chevron was the landmark 1984 decision in which SCOTUS defined the legal test for determining whether to grant deference to a government agency's interpretation of a statute that it administers. In a country “that values limited government and the separation of powers,” the “extraordinary power” of a federal agency to require vessel owners to pay the salaries of onboard inspectors “should require the clearest of congressional grants,” said the Nov. 10 petition. The case is on appeal from the U.S. Appeals Court for the D.C. Circuit, where a “divided panel” deferred to the agency “by purporting to identify silence in the statutory scheme," perceiving it as an "ambiguity" that called for Chevron "deference,” it said. “That is either a fundamental overreading of Chevron or a powerful argument for its overruling,” it said. Either way, SCOTUS “should grant review to impose sensible limits on agency deference,” it said. It asked SCOTUS to “reverse the clear agency overreach at issue here."

Apple seeks a 30-day deadline extension to April 14 to file its response to the Jan. 23 cert petition from two dozen iPhone users seeking uniformity in circuit courts’ rulings on cellphone safety, Apple attorney Joseph Palmore of Morrison Foerster wrote Supreme Court Clerk Scott Harris in a letter Wednesday (docket 22-698). Palmore’s Jan. 26 waiver said Apple wouldn’t file a response to the petition unless SCOTUS requested one, which the court did Feb. 13 (see 2302140010). The extension is warranted “because of the press of other matters and the need to analyze the issues raised by the petition,” Palmore told Harris. The petition said there's profound inconsistency among the appellate courts over whether certain FCC guidelines “impliedly preempt” state-law claims about cellphone safety (see 2301270065). SCOTUS has a “golden opportunity” to bring uniformity to the decision-making, it said. The petition seeks a reversal of the 9th U.S. Circuit Court of Appeals Aug. 26 opinion affirming the district court’s summary judgment for Apple, based on federal law preemption of the state-law claims.

The Supreme Court denied Blanca Telephone’s Jan. 9 cert petition seeking enforcement of the 10th U.S. Circuit Appeals Court’s May 2021 mandate directing the FCC to collect an old USF debt only through “nonpunitive administrative offset” means, said a text-only entry (docket 22-645). Blanca alleged in a Jan. 16 supplement that the FCC retaliated against the ILEC’s cert petition by abruptly canceling its spectrum lease application for failure to make payment on a delinquent USF debt (see 2301190001). Blanca didn't comment Tuesday.

Blaming online services “that are actively fighting dangerous content when bad actors manage to evade detection systems is not the answer,” said CCIA President Matt Schruers in a statement Thursday about oral arguments at the Supreme Court this week on whether social media platforms can be held liable for aiding and abetting terrorists (see 2301120061 and 2302210062). “Companies would likely respond by either over-sanitizing their communities or throwing up their hands and no longer patrolling for dangerous content, lest their efforts to protect users engender more lawsuits,” said Schruers. “No one wants to see this type of material online: not users, not advertisers, nor the services themselves. However, penalizing services that attempt to combat extremism when they miss needles in haystacks will discourage companies from searching at all, and make for a more dangerous internet.”

The Supreme Court asked Apple to file a response by March 15 to the Jan. 23 cert petition from two dozen iPhone users seeking uniformity in circuit courts’ rulings on cellphone safety, said a text-only entry Monday (docket 22-698). Apple’s Jan. 26 waiver said Apple wouldn’t file a response to the petition unless SCOTUS requested one. The petition said there's profound inconsistency among the appellate courts over whether certain FCC guidelines “impliedly preempt” state-law claims about cellphone safety (see 2301270065). SCOTUS has a “golden opportunity” to bring uniformity to the decision-making, it said. The petition seeks a reversal of the 9th U.S. Circuit Court of Appeals opinion on Aug. 26 affirming the district court’s summary judgment for Apple, based on federal law preemption of the state-law claims. The petition is in circulation for the justices' Friday conference.

The Supreme Court circulated Blanca Telephone’s Jan. 9 cert petition for the justices’ Feb. 24 conference, said a text-only entry Wednesday in docket 22-645. Blanca is seeking SCOTUS enforcement of the 10th U.S. Circuit Appeals Court’s May 2021 mandate directing the FCC to collect an old USF debt only through “nonpunitive administrative offset” means. Blanca alleged in a Jan. 16 supplement the FCC retaliated against the ILEC’s cert petition by abruptly canceling its spectrum lease application for failure to make payment on a delinquent USF debt (see 2301190001).

Two days after the U.S. Appeals Court for the Federal Circuit denied Nimitz Technologies’ combined petition for panel rehearing and rehearing en banc of the court’s previous denial of its petition for mandamus relief (see 2302010033), Nimitz asked the Federal Circuit in a motion Thursday (docket 23-103) to stay issuing the mandate in its case, pending the filing of a mandamus or cert petition at the Supreme Court. A mandate would send the case back to Chief U.S. District Judge Colm Connolly in Delaware for enforcement of his Nov. 10 order for Nimitz to produce bank records, emails and other materials for his investigation into any third-party funding that contributed to the filing of four Nimitz patent infringement lawsuits against Bloomberg, BuzzFeed, Cnet and Imagine Learning (see 2212230001). Nimitz asserts the materials Connolly is demanding are protected by attorney-client privilege. The issues to be presented to the Supreme Court “present a substantial question,” and there is good cause for a stay, said the Nimitz motion. By denying the combined rehearing petition, the Federal Circuit required Nimitz to disclose communications “that are protected by the attorney-client privilege to an adversary without any suggestion, much less finding, that any exception to the attorney-client privilege applies in this case,” it said. Four Supreme Court cases, dating to the 1981 decision in Upjohn v. U.S., 449 U.S. 383, 389, “uphold the attorney-client privilege and preclude the disclosure of privileged communications to the district court, which is the adversary in this case,” it said. Nimitz is thus “raising an issue which has never been addressed by any court,” it said. Any disclosure to Connolly of privileged communications would be permanent and “cannot thereafter be ameliorated,” it said.

The government waives its right to file a response to Blanca Telephone’s petition for cert at the Supreme Court, “unless requested to do so” by SCOTUS, said U.S. Solicitor General Elizabeth Prelogar in a waiver Tuesday (docket 22-0645). Blanca alleges the FCC retaliated against the ILEC days after it filed its cert petition to enforce the 10th U.S. Circuit Appeals Court’s May 2021 mandate directing the agency to collect an old USF debt only through “nonpunitive administrative offset” means (see 2301190001).

A DOJ filing in U.S. Supreme Court Section 230 case Twitter v. Taamneh “wrongly” narrows the circumstances under which entities can be held liable for aiding terrorists, said a group of law professors who specialize in counterterrorism, in an amicus brief posted in docket 21-1496 Wednesday. DOJ erred in saying plaintiffs arguing that an entity had violated the Antiterroism Act or the Justice Against Sponsors of Terrorism Act needed to show that an entity had “anything more than an arms-length transactional relationship” with terrorists, the filing said. Such allegations “are not necessary” to state a claim under the anti-terrorism statutes, the brief said. The question of whether an entity provided substantial assistance to ISIS “turns not on whether its services were bespoke; it turns on whether the services had a meaningful impact on ISIS’s ability to carry out illicit activities,” the filing said.