Whether the National Cement doctrine of judicial remand for agency reinterpretation is unconstitutional and whether Chevron deference should be overruled or clarified

No question identified. : To the Honorable John G. Roberts, Jr., Chief Justice of the Supreme Court of the United States and Circuit Justice for the D.C. Circuit: Pursuant to Supreme Court Rule 13.5, Petitioner KC Transport, Inc., respectfully requests an extension of time of 41 days to file its Petition for a Writ of Certiorari in this Court up to and including Monday, February 12, 2024. JUDGMENT FOR WHICH REVIEW IS SOUGHT The judgment for which review is sought is Secretary of Labor, Mine Safety & Health Administration v. KC Transport, Inc. & Federal Mine Safety and Health Review Commission, 77 F.4th 1022 (D.C. Cir. Aug. 1, 2023) (attached as Exhibit 1), rehearing denied 2023 WL 6466441 (Oct. 3, 2023) (attached as Exhibit 2). The Petition for a Writ of Certiorari is currently due on January 2, 2024, per Supreme Court Rule 13.3. This application for an extension of time is filed more than ten days prior to that date. JURISDICTION This case arises under the Constitution of the United States and 30 U.S.C. § 802(h). The Petition will ask (1) whether the D.C. Circuit’s National Cement doctrine—under which a court must remand to the agency for a revised interpretation of a statute that the agency originally claimed to be unambiguous but which the court subsequently determines to be ambiguous, for the express purpose of then deferring to that revised interpretation after remand—is unconstitutional or otherwise impermissible, cf. Sec’y of Labor v. Nat'l Cement Co. of Cal., Inc., 494 F.3d 1066 (D.C. Cir. 2007); (2) whether the doctrine of Chevron deference should be overruled or clarified, cf. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); and (3) whether a truck or a truck maintenance yard that is not located at an extraction site, on an appurtenant road, or at a processing facility, a “mine” under 30 U.S.C. § 802(h)(1). This Court has jurisdiction over a timely filed petition for a writ of certiorari in this case pursuant to 28 U.S.C. § 1254(1). REASONS FOR GRANTING EXTENSION OF TIME Petitioner’s undersigned counsel of record requires extra time to file a petition in this case due to concurrent demand on his workload. Counsel represents many other clients in cases spanning multiple jurisdictions, with several upcoming deadlines. Moats v. Nat'l Credit Union Admin. Bd., No. 3:23-cv-147 (S.D. Tex.); Black v. FINRA, No. 3:23-cv-709 (W.D.N.C.); Union LLC v. Ariz. Dep’t of Agriculture, No. CV2023-018151 (Ariz. Super. Ct., Maricopa Cnty.). Also, undersigned counsel has just become associated with this case, following the denial of the petition for rehearing below. Further, undersigned counsel has additional professional and family obligations, including a pre-planned end-of-year international trip to visit with family, that further reduces the time available for work on the forthcoming petition. CONCLUSION For the foregoing reasons, Petitioner requests that this Court grant an extension of 41 days, up to and including February 12, 2024, within which to file a Petition for a Writ of Certiorari. DATED: November 29, 2023. JAMES P. MCHUGH Hardy Pence PLLC 10 Hale St., 4th Floor P.O. Box 2548 Charleston, WV 25329 Respectfully submitted, 7 Spon ADITYA DYNAR Counsel of Record Pacific Legal Foundation 3100 Clarendon Blvd., Suite 1000 Arlington, VA 22201 (202) 807-4472 DAMIEN M. SCHIFF Pacific Legal Foundation 555 Capitol Mall, Suite 1290 Sacramento, CA 95814 Counsel for Petitioner CERTIFICATE OF SERVICE A copy of this application was served via email and U.S. mail to counsel listed below in accordance with Supreme Court Rules 22.2 and 29.3: Elizabeth B. Prelogar Solicitor General United States Department of Justice Room 5616 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Telephone: (202) 514-2217 Susannah Madeline Maltz U.S. Department of Labor Office of the Solicitor 200 Constitution Avenue, NW Washington, DC 20210 Telephone: (202) 693-5393 Attorney for Respondent Secretary of Labor, Mine Safe