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National Association of Manufacturers v. Department of Defense, et al.

Paid petition · United States Court of Appeals for the Sixth Circuit, No. 15-3751 · judgment February 22, 2016

Decided · January 22, 2018
At-filing estimate: 2% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

In June 2015, respondent agencies promulgated a final rule defining the term "the waters of the United States" and hence the scope of Clean Water Act jurisdiction. The National Association of Manufacturers challenged that rule in district court under the Administrative Procedure Act. State, municipal, industry, and environmental challengers likewise filed APA suits, but in addition filed protective petitions for review in the courts of appeals, citing uncertainty about whether the rule challenge falls under the CWA's judicial review provision, 33 U.S.C. § 1369(b)(l). The petitions for review were consolidated in the Sixth Circuit. The NAM intervened as respondent in the Sixth Circuit and moved to dismiss the petitions for want of jurisdiction. After full briefing and argument, the Sixth Circuit held that it, not the district courts, has jurisdiction to decide challenges to the rule. But only one judge actually believed that to be the correct outcome. Although two panel members concluded that § 1369(b)(1) precludes jurisdiction, one of them reasoned that he was bound by "incorrect" circuit precedent to take jurisdiction under § 1369(b)(1)(F), which requires that agency actions "in issuing or denying any permit under" § 1342 be reviewed by the court of appeals. This recurring jurisdictional issue has divided the circuits, wasted judicial and party resources, and delayed the resolution of important rule challenges. The question presented is whether the Sixth Circuit erred when it held that it has jurisdiction under 33 U.S.C. § 1369(b)(1)(F) to decide petitions to review the waters of the United States rule, even though the rule does not "issu[e] or den[y] any permit" but instead defines the waters that fall within Clean Water Act jurisdiction.

Counsel of record

For petitioner
Timothy S. Bishop
Mayer Brown, LLP

For respondent
Andrew D. Bing
Deputy Solicitor General

Case

Subject area
Judicial Power (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 3 conferences

Amicus briefs
1 merits
(1 supporting pet./neither)

Linked docket
16A11, 17A146

Argument & decision

Argued October 11, 2017 — Timothy S. Bishop · Eric E. Murphy · Rachel P. Kovner. Listen and read along · the Court’s audio

Decided January 22, 2018. Opinion by Sotomayor.

Proceedings

  1. Feb 23 2018
    JUDGMENT ISSUED.
  2. Jan 22 2018
    Judgment REVERSED and case REMANDED. Sotomayor, J., delivered the opinion for a unanimous Court.
  3. Nov 22 2017
    Letter of respondents Department of Defense, et al. filed. (Distributed)
  4. Nov 17 2017
    Letter of petitioner National Association of Manufacturers filed. (Distributed)
  5. Oct 11 2017
    Argued. For petitioner: Timothy S. Bishop, Chicago, Ill. For respondents Ohio, et al. in support of petitioner: Eric E. Murphy, State Solicitor for Ohio, Columbus, Ohio. For respondents: Rachel P. Kovner, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
  6. Sep 11 2017
    Reply of respondent Utility Water Act Group in support of petitioner filed. (Distributed)
  7. Sep 11 2017
    Reply of respondents Waterkeeper Alliance, Inc., et al. in support of petitioner filed. (Distributed)
  8. Sep 11 2017
    Reply of petitioner National Association of Manufacturers filed. (Distributed)
  9. Sep 08 2017
    Reply of respondents State Respondents Ohio, et al. in support of petitioner filed. (Distributed)
  10. Aug 25 2017
    Motion for divided argument filed by respondents Ohio, et al. in support of petitioner GRANTED.
  11. Aug 09 2017
    CIRCULATED
  12. Aug 07 2017
    Application (17A146) granted by Justice Kagan extending the time to file reply briefs on the merits until September 11, 2017.
  13. Aug 03 2017
    Record received from the U.S.C.A. 6th Circuit is electronic.
  14. Aug 03 2017
    Application (17A146) to extend the time to file reply briefs on the merits from August 28, 2017 to September 11, 2017, submitted to Justice Kagan.
  15. Aug 01 2017
    Record requested from the U.S.C.A. 6th Circuit.
  16. Jul 28 2017
    Brief of respondents Department of Defense, et al. filed.
  17. Jul 28 2017
    Brief of respondents Natural Resources Defense Council, et al. filed.
  18. Jul 19 2017
    SET FOR ARGUMENT on Wednesday, October 11, 2017.
  19. Jun 26 2017
    Motion for divided argument filed by respondents Ohio, et al.
  20. May 10 2017
    The time to file respondents' briefs on the merits is extended to and including July 28, 2017.
  21. May 05 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents Waterkeeper Alliance, et al.
  22. May 04 2017
    Brief amici curiae of The Chamber of Commerce of the United States of America, et al. filed.
  23. May 03 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for intervenors-respondents New York, et al.
  24. Apr 27 2017
    Brief of respondents Waterkeeper Alliance, Inc., et al. in support filed.
  25. Apr 27 2017
    Brief of respondent Utility Water Act Group in support filed.
  26. Apr 27 2017
    Brief of petitioner National Association of Manufacturers filed.
  27. Apr 27 2017
    Brief of respondents Ohio, et al. in support filed.
  28. Apr 27 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents Ohio, et al
  29. Apr 26 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the Federal Respondent.
  30. Apr 26 2017
    Brief of respondents Agrowstar LLC, et al. in support filed.
  31. Apr 21 2017
    Consent to the filing of amicus curiae briefs in support of either party or neither party from counsel for respondents American Farm Bureau Federation, et al. filed.
  32. Apr 06 2017
    The time to file petitioner's brief on the merits is further extended to and including April 27, 2017.
  33. Apr 03 2017
    Motion to hold the briefing schedule in abeyance DENIED.
  34. Mar 17 2017
    Opposition of respondents New York, et al. to motion to hold the briefing schedule in abeyance filed. (Distributed)
  35. Mar 16 2017
    Opposition of respondents Waterkeeper Alliance, et al. to motion to hold the briefing schedule in abeyance filed. (Distributed)
  36. Mar 15 2017
    Motion DISTRIBUTED for Conference of March 31, 2017.
  37. Mar 15 2017
    Opposition of respondents American Farm Bureau Federation, et al. to motion to hold the briefing schedule in abeyance filed. (Distributed)
  38. Mar 15 2017
    Response of respondents Ohio, et al. to motion to hold the briefing schedule in abeyance filed. (Distributed)
  39. Mar 15 2017
    Opposition of respondents Natural Resources Defense Council, et al. to motion to hold the briefing schedule in abeyance filed. (Distributed)
  40. Mar 07 2017
    The time to file petitioner's brief on the merits is further extended to and including April 13, 2017.
  41. Mar 06 2017
    Motion to hold the briefing schedule in abeyance filed by federal respondents.
  42. Feb 21 2017
    Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
  43. Feb 17 2017
    The time to file respondents' briefs on the merits is extended to and including May 31, 2017.
  44. Feb 15 2017
    The time to file petitioner's brief on the merits is extended to and including March 29, 2017.
  45. Feb 01 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the respondents AGrowStar, LLC, et al.
  46. Jan 31 2017
    Motion to dispense with printing the joint appendix filed by petitioner National Association of Manufacturers.
  47. Jan 27 2017
    Consent to the filing of amicus curiae briefs in support of either party or of neither party from counsel for the petitioner filed.
  48. Jan 13 2017
    Petition GRANTED.
  49. Jan 09 2017
    DISTRIBUTED for Conference of January 13, 2017.
  50. Dec 21 2016
    DISTRIBUTED for Conference of January 6, 2017.
  51. Dec 20 2016
    Reply of petitioner National Association of Manufacturers filed.
  52. Dec 07 2016
    Brief of Federal Respondents in opposition filed.
  53. Oct 28 2016
    Order further extending time to file response to petition to and including December 7, 2016.
  54. Oct 07 2016
    Brief of respondents American Farm Bureau Federation, et al. in support filed.
  55. Oct 07 2016
    Brief of respondents Ohio, et al. filed.
  56. Oct 05 2016
    Brief of respondents Agrowstar LLC, et al. in support filed.
  57. Sep 29 2016
    Order extending time to file response to petition to and including November 7, 2016.
  58. Sep 02 2016
    Petition for a writ of certiorari filed. (Response due October 7, 2016)
  59. Jul 01 2016
    Application (16A11) granted by Justice Kagan extending the time to file until September 2, 2016.
  60. Jun 30 2016
    Application (16A11) to extend the time to file a petition for a writ of certiorari from July 20, 2016 to September 2, 2016, submitted to Justice Kagan.