NJ Fishermen Ask Supreme Court to End Unlawful, Job-Killing Mandate

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Contact:  James Davis, james@touchdownstrategies.com, (703) 635-5600

Contact:  James Valvo, media@causeofaction.org

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Paul Clement unites with Cause of Action Institute to petition Court to overrule Chevron deference

Bureaucrats bypass Congress to force herring fishermen to pay for at-sea monitors

WASHINGTON, DC, November 10, 2022—Former U.S. Solicitor General Paul Clement today petitioned the U.S. Supreme Court to hear the case of several New Jersey fishermen challenging an onerous and unlawful federal mandate. Central to the case is Chevron deference and the ability of federal courts to overrule executive branch actions that have no basis in law.

National Oceanic and Atmospheric Administration (NOAA) regulations force herring fishermen to pay hundreds of dollars out of pocket to host at-sea monitors who observe the fishermen on fishing trips and report their activities to the federal government. The mandate forces herring fishermen to pay monitors as much as $700 per day, which can be more than some boat captains and crew members make on the same trips.

“We are fighting for our livelihoods and a future that is being unfairly targeted by federal overreach,” said Stefan Axelsson, a third-generation fisherman and captain of one of the vessels in the lawsuit. “These rules could force hardworking fishermen to surrender a significant part of their earnings.”

Watch a video profile of the case.

Federal law authorizes the placement of at-sea monitors, but not passing the cost of monitors onto herring fishermen. When NOAA realized it would be unable to afford its desired herring monitoring program, the agency shifted the costs to fishermen instead of seeking additional funds from Congress.

Read the petition.

Interestingly, Congress has already spoken to the issue of industry funding.  It gave NOAA explicit authority to require fishermen in certain fisheries to pay for at-sea monitors. But Congress considered and rejected granting that authority over the herring fishery at issue in this case.

“It is the duty of the judiciary to step in when any branch of government has abused its power,” said Paul Clement. “This case is about correcting one such abuse and reining in executive overreach that threatens the livelihoods of fishing families and the constitutional balance of power.”

Overturning Chevron Deference

The case, Loper Bright Enterprises v. Raimondo, has the potential to set a landmark precedent by overruling Chevron deference, a decades-old legal doctrine that has allowed Congress to outsource lawmaking to executive agency employees. That standard has all but guaranteed government victories in regulatory cases by giving unelected bureaucrats carte blanche for rulemaking without congressional approval.

There are indications the federal judiciary is prepared to revisit Chevron. The D.C. Circuit Court of Appeals upheld the at-sea monitor requirement based on Chevron in a 2-1 ruling. In a strong dissent, Judge Justin Walker derided NOAA’s attempt to circumvent Congress:

Congress can make profitable fishing even harder by forcing fishermen to spend a fifth of their revenue on the wages of federal monitors embedded by regulation onto their ships. But until Congress does that, the Fisheries Service cannot.

“Congress did not give NOAA the power to outsource the costs of at-sea monitors,” said Cause of Action Institute Counsel Ryan Mulvey. “It is time for the Supreme Court to do away with Chevron and return lawmaking to its rightful place in Congress and statutory interpretation to its rightful place: the judiciary, not the executive branch.”

The fishermen received legal assistance from Cause of Action Institute, a non-profit devoted to individual liberty.

The petition is available on Cause of Action Institute’s website. Background information, including the petition, motion, and lower court rulings, can be found here.

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About Cause of Action Institute: Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

About Clement & Murphy: Paul Clement served as United States solicitor general from 2004 to 2008. Over the past three Supreme Court terms, attorneys with Clement & Murphy have argued 14 cases and prevailed in 12. Its team has successfully litigated both alongside and against the United States government, as well as federal agencies, and we have successfully secured certiorari over the federal government’s opposition and successfully opposed certiorari when the federal government has sought it.

Court Filings: Loper Bright Enterprises, Inc v. Gina Raimondo

Read important filings and follow updates in the case:

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A Federal Agency Spent Years Fighting to Uphold These Ridiculous Redactions

“11:45 is fine, will be at my desk”

“With the retirement of EXIM Bank’s former Chief Information Security Officer (CISO), EXIM Bank hired a new CISO.”

These are just two lines of innocuous text the Export-Import Bank (“EXIM”) fought to keep redacted in Cause of Action Institute’s (“CoA Institute”) Freedom of Information Act (“FOIA”) lawsuit that began in July 2019. In a final decision released in January 2022, Judge James Boasberg of the U.S District Court for the District of Columbia  ruled that EXIM would finally have to disclose this information after years of stonewalling.

CoA Institute submitted its first FOIA request to EXIM on September 20, 2018 seeking communications with its largest stakeholders and beneficiaries.  It followed-up with a second request in May 2019 seeking information about a Government Accountability Office report that found EXIM failed to use a readily available federal database to ensure it was not financing companies with delinquent federal debt.

We previously covered Judge Boasberg’s first ruling that EXIM would have to disclose records in February 2021. Discussing records regarding EXIM communications with the GAO, Judge Boasberg expressed marked displeasure with the agency: “Even the briefest in camera review reveals that [the agency’s] description [for why it withheld records] is plainly overbroad and — at least with respect to some of the withheld documents — seemingly inaccurate.”

As we celebrate Sunshine Week 2022, it’s important to remember how FOIA remains an imperfect tool that often requires litigation to get federal agencies to act in a transparent manner. Any FOIA reform must address this problem, particularly as it concerns the use of Exemption 5 and the deliberative-process privilege.

Here are the rest of the overbroad and plainly unjustified redactions EXIM was finally forced to disclose after almost two and a half years of litigation:

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Read more of CoA Institute’s work on EXIM:

 

Litigation Update: Cause of Action Institute Forces Department of Commerce to Release 232 Uranium Report

On the eve of oral argument before the District Court for the District of Columbia, the Department of Commerce says it intends to publish its Section 232 report on the “Effect of Imports of Uranium on the National Security” tomorrow, July 29, 2021, in a just-filed motion:

On July 29, 2021, Commerce intends to publish the Uranium Report on its website and, on August 2, 2021, it intends to publish the report in the Federal Register. Undersigned counsel has been authorized to represent that the Office of the President has agreed with this course of action.

Cause of Action Institute originally filed FOIA requests for the report over two years ago on April 15, 2019, and filed suit on September 10, 2019.

Ryan Mulvey, counsel at CoA Institute:

We are pleased that the Department of Commerce finally decided to provide transparency on this report, but It should not have taken a FOIA lawsuit to force release when the 232 statute requires publishing reports in the Federal Register. 232 reports are paid for by taxpayers and serve an important role in keeping the tariff process transparent.

The remaining issues in the lawsuit include a “policy or practice” claim, which CoA Institute is using to seek judicial review of Commerce’s systematic approach of denying access to Section 232 reports, and the failure of agency to provide the response letter from the Department of Defense.

232 Uranium Report Documents:

More information about CoA Institute’s FOIA litigation for the 232 Auto-Tariff report:

Herring fishermen appeal district court decision upholding industry-killing at-sea monitoring regulations

Washington D.C. – Cause of Action Institute today filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit on behalf of several family-owned fishing companies based in New Jersey, who hope to block a new regulation that would force them to pay for third-party “at-sea monitors.”  That regulation—which was designed by the New England Fishery Management Council and promulgated by the National Oceanic Atmospheric Administration—requires certain boats in the Atlantic herring fishery to carry “at-sea monitors” and at industry’s cost, all without congressional authorization.

Learn More

DC Circuit Rejects DOJ Attempt to Use “Non-Responsive” as a Tenth Exemption to FOIA

This week, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of Cause of Action Institute in its challenge to the Department of Justice’s (“DOJ”) attempt to segment records as “non-responsive” in order to avoid disclosure under the Freedom of Information Act (“FOIA”).

The records at issue were DOJ responses to questions from members of Congress known as Questions for the Record (“QFR”). The Circuit shot down DOJ’s argument that it could withhold individual questions and answers as non-responsive within a single QFR document:

DOJ’s position in this case is that each individual question and its corresponding answer within each of the self-contained QFR documents constitutes a separate “record” under FOIA. Resting on this claim, DOJ maintains that if it determined that a particular question-and-answer pairing within a QFR document was unresponsive to Appellant’s FOIA request, DOJ could decline to disclose the material even though none of the material in the QFR document was exempt from disclosure. Though our case law provides for a “range of possible ways in which an agency might conceive of a ‘record,’” we reject DOJ’s approach as an untenable application of FOIA, outside the range of reasonableness.

Unfortunately, the Circuit, while reversing the District Court on standing, dismissed Cause of Action Institute’s second claim challenging to DOJ Office of Information Policy’s guidance on defining a record under FOIA as unripe.

Read more about the decision at Yale Notice and Comment.

Background:

October 30, 2020: Cause of Action Institute files opening brief in DC Circuit appeal over definition of a “record” under the Freedom of Information Act

Feb. 8, 2017: Defining a “Record” under FOIA

Aug. 17, 2016: There is No Tenth Exemption

Federal Judge Rejects Export-Import Bank’s Arguments for Refusing to Disclose Public Records

Judge James Boasberg of the U.S District Court for the District of Columbia ruled this week that the Export-Import Bank (“EXIM Bank”) must produce a variety of records it initially withheld in response to two FOIA requests from Cause of Action Institute (“CoA Institute”). CoA Institute’s September 20, 2018 FOIA request sought all communications to or from EXIM leadership regarding key EXIM stakeholders and beneficiaries. The May 2019 FOIA request sought information after a Government Accountability Office (“GAO”) report found EXIM potentially provided billions in financing to companies with delinquent federal debt by failing to use a readily available federal database.

EXIM attempted to shield the records from disclosure under FOIA Exemption 5 and the deliberative-process privilege (a.k.a., the “withhold it because you want to” exemption). After reviewing the withholdings and unredacted versions of the records in camera, the Court issued a forceful opinion that describes numerous instances where the agency either inappropriately withheld public records or failed to adequately defend its refusal to disclose them.

Page 13 regarding cybersecurity documents:

“[T]he agency’s Vaughn Index omits all mention of one of the two withheld memoranda.  The Court only because privy to its existence by way of in camera review, finding it tucked within a different record marked for other purposes. It need scarcely be said that the Court cannot affirm Defendant’s withhold of a record it never even acknowledges. . . . [I]t is painful enough for the Court to laboriously pore over all of these in camera records even without errors.”

Pages 17–18 regarding media outreach and marketing documents, events and conference documents, and high-level statistics:

“Instead of discussing (or even alluding to) these parts of the senior staff reports, Defendant simply approaches the documents from a generic, 30,000-foot view while ever so briefly narrowing in on a few unrepresentative portions . . . . [M]uch material in the reports hardly qualifies as ‘advisory opinions, recommendations and deliberations,’ nondisclosure of which is necessary to “protect[] the decision making processes of government agencies. . . . [T]he agency bears the burden of establishing that the withheld information is both predecisional and deliberative, such that it comes within the privilege. It has not discharged that obligation with respect to the excerpts examined here.”

Pages 19–20 regarding meeting documents:

“[R]eprising its earlier oversight, Defendant neglects to include in its Vaughn Index one of the three sets of meeting minutes, as well as one of the two meeting agendas.  The Court, once again, only discovered their existence during its in camera review.  Such repeated carelessness only undermines the Court’s confidence in the attention the Government has devoted to its responsibilities here.  The second problem is perhaps worse: notwithstanding its near-complete withholdings, Defendant in its submissions completely ignores all six records, declining even to mention them in its declaration and briefing.  That lapse is all the more glaring where [CoA Institute] explicitly flagged the deficiency in its Cross-Motion.”

Page 23 regarding an e-mail from EXIM’s Assistant General Counsel:

“The Court could go on — for instance, Defendant never establishes . . . that the underlying information was kept confidential. . . . This record must see the light of day.”

Pages 30–31 regarding EXIM communications with the GAO:

“Even the briefest in camera review reveals that this description is plainly overbroad and — at least with respect to some of the withheld documents — seemingly inaccurate, as their content has nothing to do with ‘fraud[] that had been committed against the agency.’”

Page 33 regarding a single EXIM e-mail to the GAO:

“In addition to thus appearing to flunk Exemption 5’s threshold requirement . . . in no fashion may the document be deemed deliberative. . . . Defendant has pointed to no foreseeable harm from its disclosure, the agency must release it to Plaintiff.”

Page 41 regarding efforts to segregate and release non-exempt portions of records:

“[CoA Institute] has highlighted several red flags undermining the ‘presumption’ that Defendant has disclosed all reasonably segregable material, including the basic reality that a number of the records the Government claims were only redacted in part appear to have been redacted in full.  The Court’s own in camera review, moreover, causes it further [to] question whether the Bank has adequately complied with FOIA’s segregability mandate.”

Read more of CoA Institute’s work on EXIM: