Petitioners Brief — PDR Network, LLC, et al., Petitioners v. Carlton & Harris Chiropractic, Inc.

Supreme Court briefJan 8, 2019

Ask Donna

What actually matters in this document.

Text

No. 17-1705

IN THE

Supreme Court of the United States

___________

PDR NETWORK, LLC, et al.,

Petitioners,

CARLTON & HARRIS CHIROPRACTIC, INC.,

Respondent.

___________

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

___________

BRIEF FOR PETITIONERS

___________

JEFFREY N. ROSENTHAL

BLANK ROME LLP

130 N. 18th Street

Philadelphia, PA 19103

(215) 569-5553

ANA TAGVORYAN

BLANK ROME LLP

2029 Century Park East

6th Floor

Los Angeles, CA 90067

(424) 239-3400

CARTER G. PHILLIPS *

KWAKU A. AKOWUAH

DANIEL J. FEITH

KURT A. JOHNSON

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Petitioners

January 8, 2019

* Counsel of Record

QUESTION PRESENTED

Whether the Hobbs Act required the district court in

this case to accept the FCC’s legal interpretation of the

Telephone Consumer Protection Act.

(i)

PARTIES TO THE PROCEEDING

AND CORPORATE DISCLOSURE STATEMENT

Petitioners are PDR Network, LLC, PDR Distribution, LLC, and PDR Equity, LLC. Each Petitioner belongs to a corporate family of entities dedicated to delivering health knowledge products and services that

support drug prescribing decisions and patient adherence to medication regimes to improve health. PDR

Network, LLC, and PDR Distribution, LLC, are wholly

owned subsidiaries of PDR, LLC. PDR Equity, LLC, is

a wholly owned subsidiary of PSKW Holdings, LLC.

No publicly held corporation holds 10% or more of any

petitioner’s stock.

Respondent Carlton & Harris Chiropractic, Inc., is a

chiropractic medical office located in West Virginia

that delivers healthcare services.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................

PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT ...........

TABLE OF AUTHORITIES .................................

BRIEF FOR PETITIONERS ................................

OPINIONS BELOW .............................................

JURISDICTION....................................................

STATUTORY PROVISIONS INVOLVED ...........

STATEMENT OF THE CASE..............................

A. Statutory And Regulatory Background ...

1. The Telephone Consumer Protection

Act .........................................................

2. The Hobbs Act .......................................

B. Factual Background And Proceedings Below..............................................................

SUMMARY OF ARGUMENT ..............................

ARGUMENT .........................................................

I. THE HOBBS ACT DOES NOT PRECLUDE

A DISTRICT COURT FROM DECIDING

LEGAL QUESTIONS IN TCPA ENFORCEMENT SUITS BETWEEN PRIVATE PARTIES ...............................................................

A. The Hobbs Act Solely Addresses Suits

Against The Government Seeking Equitable Or Declaratory Relief From Unlawful Agency Action .....................................

(iii)

TABLE OF CONTENTS—continued

B. The Administrative Procedure Act Confirms That A Defendant Generally May

Challenge Agency Action In A Judicial

Enforcement Proceeding ..........................

Page

C. The Presumption Of Reviewability Of

Agency Action Supports Construing The

Hobbs Act Narrowly.................................

D. The Fourth Circuit’s Interpretation Of

The Hobbs Act Raises Grave Constitutional Concerns That Can And Should Be

Avoided .....................................................

1. The Fourth Circuit’s Interpretation

Raises Grave Due Process Concerns ....................................................

2. The Fourth Circuit’s Interpretation

Raises Severe Separation Of Powers

Concerns .............................................

II. ALTERNATIVELY,

THE

DISTRICT

COURT WAS NOT REQUIRED TO ACCEPT THE FCC’S INTERPRETATION IN

THIS CASE BECAUSE THE AGENCY

STATEMENTS AT ISSUE ARE NOT BINDING ON THE COURTS OR ANY PRIVATE

PARTY ...........................................................

CONCLUSION .....................................................

CASES

TABLE OF AUTHORITIES

Page

ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir.

2018) ...........................................................

Adamo Wrecking Co. v. United States, 434

U.S. 275 (1978) ......................................... 28, 41

Appalachian Power Co. v. EPA, 208 F.3d

1015 (D.C. Cir. 2000) .................................

Ass’n of Flight Attendants-CWA v. Huerta,

785 F.3d 710 (D.C. Cir. 2015) ....................

AT&T Mobility LLC v. Concepcion, 563 U.S.

333 (2011) ...................................................

B&B Hardware, Inc. v. Hargis Indus., Inc.,

135 S. Ct. 1293 (2015) ................................

Bais Yaakov of Spring Valley v. FCC, 852

F.3d 1078 (D.C. Cir. 2017), cert. denied,

138 S. Ct. 1043 (2018) ................................

Bank Markazi v. Peterson, 136 S. Ct. 1310

(2016) ........................................................ 42, 43

Batterton v. Francis, 432 U.S. 416 (1977) ....

Blonder-Tongue Labs., Inc. v. Univ. of Ill.

Found., 402 U.S. 313 (1971) ......................

Bowen v. Georgetown Univ. Hosp., 488 U.S.

204 (1988) ...................................................

Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667 (1986) ....................................

Bridgeview Health Care Ctr., Ltd. v. Clark,

816 F.3d 935 (7th Cir. 2016) ...................... 4, 38

Calderon v. Ashmus, 523 U.S. 740 (1998) ....

CE Design, Ltd. v. Prism Bus. Media, Inc.,

606 F.3d 443 (7th Cir. 2010) ......................

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ......................

Chrysler Corp. v. Brown, 441 U.S. 281

(1979) ..........................................................

TABLE OF AUTHORITIES—continued

Page

Chrysler Corp. v. EPA, 600 F.2d 904 (D.C.

Cir. 1979) ....................................................

City of Arlington v. FCC, 569 U.S. 290

(2013) ..........................................................

Clark v. Martinez, 543 U.S. 371 (2005) ........

Columbia Broad. Sys., Inc. v. United States,

316 U.S. 407 (1942) ....................................

In re Core Commc’ns, Inc., 531 F.3d 849

(D.C. Cir. 2008) ..........................................

Council Tree Inv’rs, Inc. v. FCC, 739 F.3d

544 (10th Cir. 2014) ...................................

Creative Montessori Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913 (7th Cir.

2011) ...........................................................

Crowell v. Benson, 285 U.S. 22 (1932) ..........

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597

(2013) ..........................................................

Edwards v. Oportun, Inc., 193 F. Supp. 3d

1096 (N.D. Cal. 2016) .................................

Ernst & Ernst v. Hochfelder, 425 U.S. 185

(1976) ........................................................ 19, 32

FCC v. ITT World Commc’ns, Inc., 466 U.S.

463 (1984) ................................................. 30, 31

Flockhart v. Synchrony Bank, 2017 WL

3276266 (N.D. Iowa Aug. 1, 2017) .............

Freeman v. Quicken Loans, Inc., 566 U.S.

624 (2012) ...................................................

Functional Music, Inc. v. FCC, 274 F.2d 543

(D.C. Cir. 1958) ........................................ 27, 29

Gage v. U.S. Atomic Energy Comm’n, 479

F.2d 1214 (D.C. Cir. 1973) .........................

Gray v. N.M. Military Inst., 249 F.2d 28

(10th Cir. 1957) ..........................................

Guevara v. Dorsey Labs., 845 F.2d 364 (1st

Cir. 1988) ....................................................

vii

TABLE OF AUTHORITIES—continued

Page

Hall v. Merck, Sharp & Dohme, 774 F. Supp.

604 (D. Kan. 1991) .....................................

Harrison v. PPG Indus., Inc., 446 U.S. 578

(1980) ..........................................................

Hofer v. Synchrony Bank, 2015 WL2374696

(E.D. Mo. May 18, 2015) ............................

ICC v. Bhd. of Locomotive Eng’rs, 482 U.S.

270 (1987) ................................................. 24, 36

Ill. Cent. Gulf R.R. v. ICC, 720 F.2d 958 (7th

Cir. 1983) .................................................. 26, 27

Japan Whaling Ass’n v. Am. Cetacean Soc’y,

478 U.S. 221 (1986) ....................................

Jennings v. Rodriguez, 138 S. Ct. 830

(2018) ........................................................ 40, 44

Kawaauhau v. Geiger, 523 U.S. 57 (1998)....

Lathrop v. Uber Techs., Inc., 2016 WL 97511

(N.D. Cal. Jan. 8, 2016)..............................

Leyse v. Clear Channel Broad., Inc., 545 F.

App’x 444 (6th Cir. 2013) ...........................

McDonnell v. United States, 136 S. Ct. 2355

(2016) ..........................................................

Mims v. Arrow Fin. Servs., LLC, 565 U.S.

368 (2012) ...................................................

Mutual Pharm. Co. v. Bartlett, 570 U.S. 472

(2013) ..........................................................

Nack v. Walburg, 715 F.3d 680 (8th Cir.

2013) ......................................................... 20, 35

Nat. Res. Def. Council v. Nuclear Regulatory

Comm’n, 666 F.2d 595 (D.C. Cir. 1981) ....

Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct.

617 (2018) ...................................................

Nelson v. Sandoz Pharm. Corp., 288 F.3d

954 (7th Cir. 2002) .....................................

viii

TABLE OF AUTHORITIES—continued

Page

N.J. Dep’t of Envtl. Prot. & Energy v. Long

Island Power Auth., 30 F.3d 403 (3d. Cir.

1994) ...........................................................

P.A.K. Transp., Inc. v. United States, 613

F.2d 351 (1st Cir. 1980) .............................

Parklane Hosiery Co. v. Shore, 439 U.S. 322

(1979) ..........................................................

Pereira v. Sessions, 138 S. Ct. 2105 (2018) ..

Perez v. Mortg. Bankers Ass’n, 135 S. Ct.

1199 (2015) ......................................... 45, 46, 47

In re Pesticide Action Network N. Am., 798

F.3d 809 (9th Cir. 2015) .............................

Physicians Healthsource, Inc. v. Boehringer

Ingelheim Pharm., Inc., 847 F.3d 92 (2d

Cir. 2017) .................................................. 26, 27

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

(1995) ..........................................................

Port of Bos. Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic, 400 U.S.

62 (1970) ................................................... 29, 30

Richards v. Jefferson Cty., 517 U.S. 793

(1996) ..........................................................

Roberts v. Sea-Land Servs., Inc., 566 U.S. 93

(2012) ..........................................................

Ry. Mail Ass’n v. Corsi, 326 U.S. 88

(1945) ..........................................................

Sandusky Wellness Ctr., LLC v. Medco

Health Sols., Inc., 788 F.3d 218 (6th Cir.

2015) ......................................................... 26, 47

Schenebeck v. Sterling Drug, Inc., 423 F.2d

919 (8th Cir. 1970) .....................................

SEC v. Alpine Secs. Corp., 308 F. Supp. 3d

775 (S.D.N.Y. 2018) ....................................

Setser v. United States, 566 U.S. 231

(2012) ..........................................................

TABLE OF AUTHORITIES—continued

Page

Shalala v. Guernsey Mem’l Hosp., 514 U.S.

87 (1995) .....................................................

Simmons v. ICC, 716 F.2d 40 (D.C. Cir.

1983) ......................................................... 15, 25

St. Joseph Stock Yards Co. v. United States,

298 U.S. 38 (1936) ......................................

Taylor v. Sturgell, 553 U.S. 880 (2008) ........

Telecomms. Research & Action Ctr. v. FCC,

750 F.2d 70 (D.C. Cir. 1984) ......................

Tenn. Pub. Serv. Comm’n v. ICC, 921 F.2d

277 (6th Cir. 1990) .....................................

Texas v. United States, 749 F.2d 1144 (5th

Cir. 1985) ....................................................

Thomas v. Union Carbide Agric. Prods. Co.,

473 U.S. 568 (1985) ....................................

Tri-State Motor Transit Co. v. ICC, 739 F.2d

1373 (8th Cir. 1984) ...................................

U.S. Nat’l Bank of Or. v. Indep. Ins. Agents

of Am., Inc., 508 U.S. 439 (1993) ...............

United States v. Azmat, 805 F.3d 1018 (11th

Cir. 2015) ....................................................

United States v. Klein, 80 U.S. (13 Wall.) 128

(1872) ..........................................................

United States v. O’Hagan, 521 U.S. 642

(1997) ..........................................................

United States v. Picciotto, 875 F.2d 345 (D.C.

Cir. 1989) ....................................................

United States v. Pitt-Des Moines, Inc., 970 F.

Supp. 1346 (N.D. Ill. 1997) ........................

Viet. Veterans of Am. v. Sec’y of the Navy, 843

F.2d 528 (D.C. Cir. 1988) ...........................

Weaver v. Fed. Motor Carrier Safety Admin.,

744 F.3d 142 (D.C. Cir. 2014) ....................

TABLE OF AUTHORITIES—continued

Whirlpool Corp. v. Marshall, 445 U.S. 1

(1980) ..........................................................

Wind River Mining Corp. v. United States,

946 F.2d 710 (9th Cir. 1991) ......................

Yakus v. United States, 321 U.S. 414

(1944) ..........................................................

Page

STATUTES AND REGULATIONS

Administrative Orders Review Act, Pub. L.

No. 81-901, 64 Stat. 1129 (1950) ...............

Telephone Consumer Protection Act of 1991,

Pub. L. No. 102-243, 105 Stat. 2394 ..........

Junk Fax Prevention Act of 2005, Pub. L.

No. 109-21, 119 Stat. 359...........................

5 U.S.C. § 703 ............................................ passim

15 U.S.C. § 78u ..............................................

§ 78u-1 ...........................................

§ 78y ..............................................

§ 78ff ..............................................

28 U.S.C. § 1254(1) ........................................

§ 1331 ............................................

§ 2201 ............................................

§§ 2341–2351 ................................

§ 2342 ...................................... 7, 13, 23

§ 2343 ............................................ 6, 23

§ 2344 ................................ 6, 14, 15, 23

§ 2347 ............................................

§ 2348 ............................................

§ 2349 ....................................... 7, 14, 22

29 U.S.C. § 655(f)...........................................

§ 662(a) ..........................................

§ 666(e) ..........................................

TABLE OF AUTHORITIES—continued

Page

33 U.S.C. § 1369(b) ........................................

42 U.S.C. § 5841(f).........................................

§ 7607(b) ........................................

§ 9613(a) ........................................

47 U.S.C. § 227(a) ...................................... 1, 4, 49

§ 227(b) .......................................... 4, 28

§ 402(a) ..................................... 7, 23, 49

§ 405(a) ..........................................

47 C.F.R. § 1.104(b) .......................................

§ 64.1200(f)(8) (2006) ....................

71 Fed. Reg. 25,967 (May 3, 2006)................

ADMINISTRATIVE DECISIONS

Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 30 FCC Rcd.

7961 (2015), vacated in part, ACA Int’l v.

FCC, 885 F.3d 687 (D.C. Cir. 2018)...........

Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 29 FCC Rcd.

13998 (2014), vacated sub nom. Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078

(D.C. Cir. 2017), cert. denied, 138 S. Ct.

1043 (2018) (mem.).....................................

Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 21 FCC Rcd.

3787 (2006) ....................................... 5, 6, 48, 49

SCHOLARLY AUTHORITY

Henry M. Hart, Jr., The Power of Congress

to Limit the Jurisdiction of Federal Courts:

An Exercise in Dialectic, 66 Harv. L. Rev.

1362 (1953) .................................................

xii

TABLE OF AUTHORITIES—continued

OTHER AUTHORITIES

Page

Fed. R. Civ. P. 23(f) advisory committee’s

note to 1998 amendment ...........................

Frequently Asked Questions About Drugs,

U.S. Food & Drug Admin., https://www.

fda.gov/aboutfda/centersoffices/officeof

medicalproductsandtobacco/cder/ucm

082690.htm (last updated Nov. 27,

2015) ...........................................................

Set Aside, Black’s Law Dictionary (10th ed.

2014) ...........................................................

16 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure (3d ed.

1998) ...........................................................

BRIEF FOR PETITIONERS

Petitioners PDR Network, LLC, et al. (collectively,

“PDR”), respectfully request that this Court reverse

the judgment of the U.S. Court of Appeals for the

Fourth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a–

31a) is reported at 883 F.3d 459. The unpublished

opinion and order of the district court (Pet. App. 32a–

43a) are available at 2016 WL 5799301.

JURISDICTION

The judgment of the court of appeals was entered on

February 23, 2018. Petitioner timely sought rehearing

en banc, which was denied on March 23, 2018. The petition for a writ of certiorari was filed on June 21, 2018,

and granted on November 13, 2018. This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions principally involved are the

Hobbs Act (28 U.S.C. §§ 2341–2351), Section 10(b) of

the Administrative Procedure Act (5 U.S.C. § 703), and

the provision of the Telephone Consumer Protection

Act that defines the term “unsolicited advertisement”

(47 U.S.C. § 227(a)(5)). The pertinent text of these provisions is set out in the appendix to the brief.

STATEMENT OF THE CASE

PDR’s position in this case proceeds from a simple

and natural premise. When Congress vests an Article

III court with power to impose liability for an alleged

statutory violation, Congress ordinarily intends also to

vest that court with the power to decide the meaning

of the statute at issue.

The decision below proceeds from the opposite premise. It takes the Hobbs Act (the “Act”)—an ordinary

agency review statute, which even the Fourth Circuit

recognized to be “nothing unique,” Pet. App. 8a (internal quotation marks omitted)—and reads it to “specifically strip[] jurisdiction from the district courts” to

consider dispositive statutory questions because an

agency has previously weighed in on those questions.

Pet. App. 8a. The court of appeals thus treated the

Hobbs Act as though it gives agencies, rather than

courts, the final word as to what federal law means.

The Fourth Circuit was wrong to ascribe such revolutionary meaning to a statute as ordinary as the

Hobbs Act. That statute is one of many that establish

what the Administrative Procedure Act (“APA”) calls

“special statutory review proceeding[s].” 5 U.S.C.

§ 703. There is variety across these provisions, but in

broad strokes they serve to route judicial actions seeking equitable or declaratory relief from unlawful

agency action to specified courts. They do not go the

further step, however, of prohibiting all other courts

from considering whether to apply an agency’s interpretation of a statute in cases that do not seek relief

against the government and that are properly before

those courts.

Correctly construed, the Hobbs Act has a limited and

sensible reach. Where applicable, it gives the courts of

appeals exclusive jurisdiction over just one kind of proceeding: suits against the United States brought to obtain injunctive or declaratory relief from agency action. No other kind of proceeding is mentioned in the

Hobbs Act. There is thus no reason to read the Act to

give the courts of appeals a monopoly over all judicial

review of agency orders, even where no relief is sought

against any federal agency, officer, or employee.

Moreover, a host of considerations strongly counsel

against the Fourth Circuit’s radical reading. Under

that reading, the Hobbs Act would conflict with the

presumption in favor of the reviewability of agency action, with a key provision of the APA embodying that

presumption, see 5 U.S.C. § 703, and with constitutional avoidance principles, given the grave due process and separation of powers questions raised by the

Fourth Circuit’s construction. The better course, by

far, is to treat the Hobbs Act as the conventional

agency review statute that it is, and thus to hold that

the Act merely confers original jurisdiction over certain equitable or declaratory actions against the government on the courts of appeals. It says nothing about

other actions, like this one, properly brought in district

court, and therefore does not interfere with the district

court’s authority, pursuant to its own “original jurisdiction [over] all civil actions arising under the Constitution, laws, or treaties of the United States,” 28 U.S.C

§ 1331, to decide the legal questions at the core of those

actions.

A. Statutory And Regulatory Background

The Telephone Consumer Protection

Act

The Telephone Consumer Protection Act of 1991

(“TCPA”) prohibits the use of “any telephone facsimile

machine” to “send an unsolicited advertisement” to another “telephone facsimile machine.” Pub. L. No. 102243, sec. 3(a), § 227(b)(1)(C), 105 Stat. 2394, 2396 (codified as amended at 47 U.S.C. § 227(b)(1)(C)). The

TCPA defines an “unsolicited advertisement” as “any

material advertising the commercial availability or

quality of any property, goods, or services which is

transmitted to any person without that person’s prior

express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5). The TCPA creates a private right of action for “violation[s] of [the TCPA] or

the regulations prescribed [thereunder].” Id.

§ 227(b)(3). In these private enforcement suits, each

individual TCPA infraction may be punished by a $500

per violation penalty, which may be trebled if the violation was made “willfully or knowingly.” Id. As many

courts have observed, this statutory damages provision has made the TCPA a magnet for litigation. Many

businesses that “have never heard of this obscure statute” face “very heavy penalties” for violations. Creative

Montessori Learning Ctrs. v. Ashford Gear LLC, 662

F.3d 913, 916 (7th Cir. 2011); see also Bridgeview

Health Care Ctr., Ltd. v. Clark, 816 F.3d 935, 941 (7th

Cir. 2016) (“We doubt that Congress intended the

TCPA, which it crafted as a consumer-protection law,

to become the means of targeting small businesses. Yet

in practice, the TCPA is nailing the little guy ....”);

Rules & Regulations Implementing the Tel. Consumer

Prot. Act of 1991, 30 FCC Rcd. 7961, 8073 (2015) (Commissioner Pai, dissenting) (“[T]he TCPA has become

the poster child for lawsuit abuse, with the number of

TCPA cases filed each year skyrocketing from 14 in

2008 to 1,908 in the first nine months of 2014.”), vacated in part, ACA Int’l v. FCC, 885 F.3d 687, 693 (D.C.

Cir. 2018).

The TCPA directs the Federal Communications

Commission (“FCC” or “Commission”) to “prescribe

regulations to implement the requirements” of the

statute. 47 U.S.C. § 227(b)(2). In 2006, pursuant to

this responsibility, the Commission issued the order at

the center of this case. For the most part, the order

amended certain rules in light of changes to the TCPA

made by the Junk Fax Prevention Act of 2005. See Pub.

L. No. 109-21, 119 Stat. 359 (codified as amended at

47 U.S.C. § 227). Those amendments are not relevant

here. What is relevant is that in issuing the order, the

Commission also “t[ook] the opportunity to address

certain issues raised in petitions for reconsideration”

of a 2003 FCC order concerning the TCPA’s facsimile

advertising rules. See Report and Order and Third Order on Reconsideration: Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 21 FCC

Rcd. 3787, 3788 (2006) (“2006 Order”).1 Those issues

included the proper application of the TCPA’s definition of “unsolicited advertisement” to “offers for free

goods and services and informational messages.”

With respect to that subject, the 2006 Order states

that unsolicited “facsimile messages that promote

goods or services even at no cost, such as free magazine

subscriptions, catalogs, or free consultations or seminars, are unsolicited advertisements under the TCPA’s

definition.” Id. at 3814. The order observes that, “[i]n

many instances, ‘free’ seminars serve as a pretext to

advertise commercial products and services,” and

“free” publications likewise “are often part of an overall marketing campaign to sell property, goods, or services.” Id.

At the same time, the 2006 Order states that “facsimile communications that contain only information,

such as industry news articles, legislative updates, or

employee benefit information, would not be prohibited

by the TCPA rules,” and that “[a]n incidental adver-

1 A “summary” of the 2006 Order was subsequently published

in the Federal Register. See Rules and Regulations Implementing

the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25,967, 25,973 (May 3, 2006).

The Fourth Circuit referred to that summary as the “2006 FCC

Rule.” Pet. App. 5a.

tisement contained in such a newsletter does not convert the entire communication into an advertisement.”

Id. The order then sets forth a number of factors the

Commission “will consider” in determining whether an

advertisement is incidental to an “informational communication.” Id. at 3814 n.187. Importantly, the order

provides that the Commission “will review such newsletters on a case-by-case basis” to determine if their

“primary purpose is informational, rather than to promote commercial products.” Id. at 3814–15 (emphasis

added).

The Hobbs Act

The Administrative Orders Review Act, better

known as the Hobbs Act, establishes a mechanism for

direct judicial review of certain final orders from several agencies, including the FCC. Pub. L. No. 81-901,

64 Stat. 1129 (1950) (codified as amended at 28 U.S.C.

§§ 2341–2351); see generally 16 Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure

§ 3941 (3d ed. 1998) (noting that the Hobbs Act is part

of “a startling array of specific statutory provisions”

that “establish court of appeals jurisdiction to review

actions of agencies”).

The Act outlines how a proceeding for direct review

must be brought and conducted, and specifies what relief may be granted to a prevailing party. To obtain direct review, a “party aggrieved” by an order must petition within 60 days of the order’s entry. 28 U.S.C.

§ 2344. “The action shall be against the United

States,” id., and must be brought in the “judicial circuit in which the petitioner resides or has its principal

office,” or in the D.C. Circuit, id. § 2343. The record

generally comprises any “proceedings before the

agency,” id. § 2347(a), and the court of appeals “has

exclusive jurisdiction to make and enter . . . a judg-

ment determining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order

of the agency,” id. § 2349(a).

Section 2342 of the Act explains which agency actions are subject to direct review. As to the FCC, it provides that “[t]he court of appeals . . . has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in

part), or to determine the validity of . . . all final orders

of the Federal Communications Commission made reviewable by section 402(a) of title 47.”2 Id. § 2342. Section 402(a), in turn, provides that, with certain exceptions not relevant here, “[a]ny proceeding to enjoin, set

aside, annul, or suspend any order of the Commission

... shall be brought as provided by and in the manner

prescribed in chapter 158 of Title 28,” i.e., the Hobbs

Act. 47 U.S.C. § 402(a).

B. Factual Background And Proceedings Below

PDR is the publisher of the Physicians’ Desk Reference, the nation’s leading compendium of prescribing

information for prescription drugs. Pet. App. 3a. As the

Food and Drug Administration has observed, the Physician’s Desk Reference compiles and reprints the “drug

labeling, or package insert, that accompanies drug

products,” which the FDA regards as “the most complete single source of information on the drug.”3 The

2 The Hobbs Act also applies to certain actions of the Secretary

of Agriculture, Secretary of Transportation, Federal Maritime

Commission, Nuclear Regulatory Commission, and Secretary of

Housing and Urban Development, and to all final orders issued

by the Surface Transportation Board. See 28 U.S.C. § 2342(2)–(7);

42 U.S.C. § 5841(f) (transferring regulatory authority from

Atomic Energy Commission to Nuclear Regulatory Commission).

3 See Frequently Asked Questions About Drugs, U.S. Food &

Drug Admin., https://www.fda.gov/aboutfda/centersoffices/office

Physicians’ Desk Reference has been aptly described as

“a publication generally available to all doctors and

utilized by drug companies to inform the medical profession of the characteristics, uses and side effects of

drugs.” Schenebeck v. Sterling Drug, Inc., 423 F.2d

919, 921 (8th Cir. 1970); see also, e.g., Mutual Pharm.

Co. v. Bartlett, 570 U.S. 472, 478 (2013) (citing Physicians’ Desk Reference as a source describing a rare but

serious side effect of nonsteroidal anti-inflammatory

pain relievers); Nelson v. Sandoz Pharm. Corp., 288

F.3d 954, 959 (7th Cir. 2002) (Physicians’ Desk Reference “provides information concerning the uses and

side effects of numerous prescription drugs”). Publication of this information in the Physicians’ Desk Reference helps ensure that healthcare professionals are adequately warned of possible side effects and can make

informed prescribing decisions for their patients. See,

e.g., Guevara v. Dorsey Labs., 845 F.2d 364, 366 (1st

Cir. 1988) (noting that inclusion of warning in Physicians’ Desk Reference meant that defendant “unquestionably did warn of [a particular] hazard”); Hall v.

Merck, Sharp & Dohme, 774 F. Supp. 604, 606 (D. Kan.

1991) (holding that information in Physicians’ Desk

Reference was sufficient to warn physician of side effects for purposes of learned intermediary doctrine);

see also United States v. Azmat, 805 F.3d 1018, 1042

(11th Cir. 2015) (affirming denial of Daubert motion

where challenged medical expert based his opinions

regarding “the prescribing practices of other physicians” on the Physicians’ Desk Reference).

PDR distributes the Physicians’ Desk Reference to

doctors and other healthcare professionals without

charge. Pet. App. 35a. It sells neither the book nor any

pharmaceutical products listed therein. Pet. App. 35a.

ofmedicalproductsandtobacco/cder/ucm082690.htm (last updated

Nov. 27, 2015).

PDR’s revenue comes from fees pharmaceutical companies pay to include their drug labels in the compendium. Pet. App. 3a.

In 2013, PDR launched a digital “eBook” version of

the Physicians’ Desk Reference. To announce the

eBook’s availability, PDR sent a fax to healthcare professionals. One of the parties to receive the fax was respondent Carlton & Harris Chiropractic, Inc., a West

Virginia healthcare practice. Pet. App. 3a. The onepage fax was addressed to the recipient’s “Practice

Manager,” and the subject line read “FREE 2014 Physicians’ Desk Reference eBook – Reserve Now.” Pet.

App. 3a. The fax invited the recipient to visit PDR’s

website and reserve an eBook copy of the coming year’s

edition of the Physicians’ Desk Reference. Pet. App. 3a.

The fax noted that the eBook contained the “[s]ame

trusted, FDA-approved full prescribing information”

as the physical version, but in a “convenient digital format.” Pet. App. 3a–4a (alteration in original). At the

bottom, the fax stated, “You are receiving this fax because you are a member of the PDR Network,” and provided instructions on how the recipient could “opt-out

of delivery.” Pet. App. 51a (reproduction of fax); see

Pet. App. 4a.

In November 2014, Carlton & Harris filed a putative

class action, claiming that PDR’s fax was an “unsolicited advertisement” sent in violation of the TCPA. Pet.

App. 4a; Pet. App. 33a. PDR moved to dismiss, arguing

that its December 2013 fax was not an “unsolicited advertisement” under the TCPA. Pet. App. 36a. PDR further contended that the FCC’s interpretation of “unsolicited advertisement” in the 2006 Order was consistent with PDR’s understanding of the statute. Pet.

App. 39a.

The district court agreed with PDR and dismissed

the case. Examining principally the text of the TCPA,

the court explained that the TCPA defines “unsolicited

advertisement” as “‘any material advertising the commercial availability or quality of any property, goods,

or services,’” Pet. App. 36a–37a (quoting 47 U.S.C.

§ 227(b)(1)(C), (a)(5)), and that PDR’s fax did not fit

this definition because the Physicians’ Desk Reference

is not “bought or sold,” and thus is not “commercially

available,” Pet. App. 36a–37a (internal quotation

marks omitted). The district court also noted that

PDR’s fax did not have a “commercial aim” because it

only “offers, for free, a reference book” that PDR does

not sell, containing “information about prescription

drugs” that PDR also does not sell. Pet. App. 38a.

Thus, the court held, the “essential commercial element of an advertisement [wa]s missing from the fax.”

Pet. App. 38a.

The district court then addressed Carlton & Harris’s

argument that the Commission’s 2006 Order conclusively resolved the dispute in its favor. First, the district court held that the Hobbs Act did not require it to

adopt the 2006 Order because neither party had “challenged the validity” of the 2006 Order, Pet. App. 39a—

PDR, after all, argued that the 2006 Order, properly

construed, supported its contention that its conduct

complied with the TCPA, see Pet. App. 24a; see also

Defendants’ Memorandum of Law in Support of Motion to Dismiss at 10–12, Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, No. 3:15-cv-14887 (S.D.

W. Va. Feb. 5, 2016), ECF No. 19. Second, the district

court determined that the TCPA’s definition of “unsolicited advertisement” was “unambiguous,” and that

the court accordingly was bound to apply that definition. Pet. App. 39a–40a. Finally, the court held that

the interpretation set forth in the 2006 Order did not

support Carlton & Harris’s claim, but instead was

“harmon[ious]” with the unambiguous meaning of the

TCPA. Pet. App. 41a. As the court explained, the 2006

Order, “careful[ly] read[],” encompasses only offers of

a “commercial nature,” Pet. App. 40a, such as offers for

free goods or services that are “‘part of an overall marketing campaign to sell property, goods, or services’” or

are a “pretext for a commercial transaction that will

inevitably follow the fax,” Pet. App. 41a (quoting 21

FCC Rcd. at 3814). The court recognized that reading

“the FCC’s guidance as a blanket ban on any fax that

offers a free good or service without any commercial

aspects ... strips essential meaning from the TCPA.”

Pet. App. 42a–43a. Because PDR’s fax had no such

commercial aspects, the district court held that it was

not an “unsolicited advertisement” under the 2006 Order, properly construed. Pet. App. 42a.

In a divided decision, the Fourth Circuit reversed. It

first held that the district court erred by relying on the

text of the TCPA to determine whether PDR’s fax was

an “unsolicited advertisement.” According to the

Fourth Circuit, the Hobbs Act “precluded the district

court” from taking this step—and likewise barred PDR

from raising any defense based on the language of the

statute—by conferring on the courts of appeal “‘exclusive jurisdiction’ to ‘enjoin, set aside, suspend (in

whole or in part), or to determine the validity of’ the

orders to which it applies.” Pet. App. 7a (quoting 28

U.S.C. § 2342(1)). The Fourth Circuit read this language to “strip[]” the district court of “jurisdiction” to

consider whether the interpretation of the TCPA offered by the FCC in the 2006 Order was valid, and instead to require the district court to “adopt the 2006

FCC Rule.” Pet. App. 8a. The Fourth Circuit held that

it made no difference that the “district court did not

specifically invalidate the 2006 FCC Rule.” Pet. App.

10a.

Turning to the proper interpretation of the 2006 Order, the Fourth Circuit then rejected the district

court’s view—as informed by the TCPA’s text, Pet.

App. 42a—that the order requires a fax to have a “commercial aim” to qualify as an “unsolicited advertisement.” Pet. App. 13a. Instead, the Fourth Circuit held

that the “plain meaning” of the 2006 Order is that all

faxes that “promote goods or services even at no

cost . . . are unsolicited advertisements under the

TCPA’s definition.” Pet App. 13a–14a (internal quotation marks omitted). According to the Fourth Circuit,

once that plain meaning was ascertained, a court’s “interpretive task [was] complete,” and there was “no

need” to “‘harmonize’ the FCC’s rule with the underlying statute, or probe the agency’s rationale.” Pet. App.

14a. The Fourth Circuit recognized that the categorical rule it divined from the 2006 Order is “broad” and

“prophylactic,” and could reach “offers for truly free

goods and services unconnected to any commercial interest.” Pet. App. 15a, 17a. But it concluded that the

reading was nonetheless a “reasonable one” because a

“per se rule” prohibiting “all unsolicited offers for free

goods or services” “advances the purpose of the underlying statute.” Pet. App. 15–16a. The court did not explain why it thought it appropriate to consult the

TCPA’s “purpose,” but not its text.

Judge Thacker dissented. She agreed with PDR that,

read as a whole, the 2006 Order interprets the TCPA

to mean that “a fax with a free offering must necessarily include a commercial aim to qualify as an ‘advertisement’ under the TCPA.” Pet. App. 29a. Judge

Thacker concluded that Carlton & Harris’s complaint

failed to plausibly allege such an aim. Pet. App. 30a–

31a.

PDR timely petitioned this Court for review, and the

Court granted the petition limited to the question of

whether the Hobbs Act required the district court in

this case to accept the FCC’s interpretation of the

TCPA.

SUMMARY OF ARGUMENT

In the proceedings below, the district court held that

the TCPA does not prohibit PDR’s fax and that reading

the FCC’s 2006 Order to do so would violate the

TCPA’s terms. The Fourth Circuit reversed, not because it construed the TCPA differently—it expressly

declined to consider the statute’s language—but because it construed the Hobbs Act to require the district

court to enforce the FCC’s interpretation of the TCPA,

regardless of whether that interpretation is consistent

with the text of the statute. That decision is wrong for

several independent reasons.

I.A. The Fourth Circuit misconstrued the Hobbs Act,

giving the Act a much broader preclusive sweep than

its text warrants. Properly read, the Hobbs Act vests

courts of appeals with exclusive jurisdiction only over

proceedings for direct review, in which a party seeks

injunctive or declaratory relief against the United

States from an allegedly unlawful agency action. The

Hobbs Act thus does not affect the authority of district

courts to fully adjudicate cases in which the United

States is not a party and no injunctive or declaratory

relief against it is sought.

The text and structure of the Hobbs Act make its

limited jurisdictional scope clear. Section 2342 provides that the courts of appeals have “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in

part), or to determine the validity of” final orders covered by the Act. 28 U.S.C. § 2342. The terms “enjoin,”

“set aside,” and “suspend” all refer to a specific type of

relief—injunctive. The noscitur a sociis canon thus

counsels that the neighboring term, “determine the validity of,” likewise refers to a specific type of relief—

declaratory. Section 2349 confirms this understanding. It defines the courts of appeals’ “exclusive jurisdiction” as embracing the power to issue “a judgment determining the validity of, and enjoining, setting aside,

or suspending, in whole or in part, the order of the

agency,” id. § 2349(a) (emphasis added). The statute

thus reserves certain kinds of “proceedings” and “judgment[s]” to the courts of appeals.

The rest of the Act likewise outlines the procedures

for obtaining such relief. The Act specifies that the proceeding “shall be against the United States,” id.

§ 2344, limits the period for review to 60 days after an

order’s entry, id., and restricts statutory standing to

parties who participated in the agency proceedings, id.

§§ 2344, 2348. The Hobbs Act thus gives the courts of

appeals “exclusive jurisdiction” limited to a specific

type of action for a specific type of relief (declaratory

or injunctive) against a specific party (the United

States). But it does not give the courts of appeals jurisdiction over the whole or part of any other kind of suit.

And in particular, it says nothing about the district

courts’ consideration of cases properly before them.

Nothing in the Hobbs Act, therefore, suggests any limitation on the power of district courts to fully consider

a party’s defenses to private civil damages claims.

I.B. The Administrative Procedure Act confirms the

Fourth Circuit’s error. It provides that, generally

speaking, “agency action is subject to judicial review in

civil or criminal proceedings for judicial enforcement.”

5 U.S.C. § 703. Because Carlton & Harris sought to enforce the FCC’s interpretation of the TCPA, as reflected in the 2006 Order (or, more precisely stated,

sought to enforce Carlton & Harris’s interpretation of

the FCC’s interpretation), the APA entitles PDR to judicial scrutiny of that “agency action” within the private enforcement proceeding authorized by the TCPA.

Section 703, to be sure, provides that judicial review

within an enforcement proceeding is not required

when “prior, adequate, and exclusive opportunity for

judicial review is provided by law.” Id. But, for at least

five reasons, the Hobbs Act did not give PDR such an

opportunity.

(1) PDR lacked statutory standing under the Hobbs

Act. Hobbs Act review is available only to a “party aggrieved” by an order. 28 U.S.C. § 2344. The courts of

appeals have unanimously read this language “to require as a general matter that petitioners be parties to

any proceedings before the agency preliminary to issuance of its order.” Simmons v. ICC, 716 F.2d 40, 42

(D.C. Cir. 1983) (citing cases). Because PDR did not participate in the FCC proceedings that gave rise to the

2006 Order, it could not have petitioned under the

Hobbs Act.

(2) PDR was out of time to petition for review under

the Hobbs Act. Hobbs Act review is available only

within 60 days of the agency’s issuance of a covered

order. 28 U.S.C. § 2344. The courts of appeals have

unanimously read that limitations period as jurisdictional. The window for anyone to seek Hobbs Act review of the 2006 Order thus closed in mid-2006—seven

years before PDR sent its fax and nearly a decade before Carlton & Harris filed the complaint that initiated

this suit.

(3) PDR had no practical reason to seek review of the

2006 Order during the allotted 60 days. Recall that

PDR argued (and continues to believe) that the FCC’s

interpretation, properly understood, is consistent with

the TCPA. The need for review arose only when Carlton & Harris advanced an expansive reading of the

FCC’s position that numerous courts had rejected. If

“prior, adequate” judicial review is provided by giving

a party just 60 days to identify and protest all potentially adverse constructions of an agency interpretation that may hypothetically arise years later in litigation, the term “adequate” has lost all meaning.

(4) Such a construction would also empty the relevant language of section 703 of all practical effect, at

least as concerns orders that announce agency interpretations of general applicability. A generally applicable interpretation, by its nature, applies to all manner of parties who are not “aggrieved” and therefore

cannot obtain Hobbs Act review. Section 703 thus provides, appropriately, that judicial review ordinarily

will be available when the rule is enforced against a

particular party, except when “prior, adequate, and exclusive” review was available. To read Hobbs Act review as satisfying this requirement would be to allow

the exception to swallow the rule.

(5) That reading would be particularly unwarranted

because Congress knows how to expressly say it wants

direct review to be the only avenue for challenging

agency action in court. The Clean Water Act, for example, provides for direct review of Environmental Protection Agency actions in the courts of appeals, and

separately specifies that orders that could have been

challenged via direct review are generally not subject

to judicial review in civil or criminal enforcement proceedings. Such statutes, however, are the exception

that proves the rule. General direct review statutes

such as the Hobbs Act do not implicitly preclude the

judicial review in enforcement actions that section 703

expressly preserves.

I.C. Two additional interpretive canons counsel

against the Fourth Circuit’s interpretation of the

Hobbs Act. First, that interpretation violates the presumption of reviewability of agency action. As noted,

Hobbs Act review will often be unavailable to parties

affected by a generally applicable rule announced by

an agency. And the ersatz review pathways suggested

by some courts that have adopted the Fourth Circuit’s

interpretation—petitioning the agency, and then appealing the agency’s ruling under the Hobbs Act—are

cumbersome at best and almost always illusory. The

only certain route to judicial review is to allow defendants to raise their legal defenses in enforcement proceedings, before the court tasked with determining liability and measuring any accompanying damages.

I.D. Second, if accepted, the Fourth Circuit’s interpretation of the Hobbs Act would raise grave constitutional concerns. Under that interpretation, PDR would

be barred from litigating a statutory defense that it

never had a full and fair opportunity to present to any

court, on the theory that an agency has put the issue

to rest without any judicial determination whatsoever.

The Fourth Circuit’s interpretation thus announces a

new species of issue preclusion that attaches without

due process. And by requiring the district court to determine PDR’s liability for violating the TCPA based

on an agency’s effectively unreviewable interpretation

of what the TCPA means, the Fourth Circuit’s interpretation raises deep and troubling separation of powers questions. This Court can and should avoid these

constitutional issues by adopting a conventional construction of the Hobbs Act.

II. Alternatively, the Hobbs Act did not require the

district court in this case to accept the FCC’s interpretation of the TCPA because the agency’s discussion in

the 2006 Order of offers for free goods and services represents a mere interpretive rule. Under general principles of administrative law, interpretive rules do not

bind courts or private parties, and frequently are not

even reviewable by a court until applied by an agency

to a particular party.

The Hobbs Act reflects this principle: to qualify as an

FCC “order” reviewable under the Act, a rule must

have the force of law, which interpretive rules do not.

The Fourth Circuit overlooked this key distinction by

assuming, without analysis, that the 2006 Order in its

entirety was a binding legislative rule. But the Commission’s discussion of “offers for free goods or services

and informational messages” bears all the hallmarks

of an interpretive rule. The district court therefore was

not bound, by the Hobbs Act or otherwise, to slavishly

follow it, and was instead free to interpret the TCPA

using appropriate tools of statutory construction. The

district court did exactly that, and correctly concluded

that Carlton & Harris’s complaint fails to plausibly allege that PDR violated the TCPA. That determination

should be upheld.

ARGUMENT

I. THE HOBBS ACT DOES NOT PRECLUDE A

DISTRICT COURT FROM DECIDING LEGAL

QUESTIONS IN TCPA ENFORCEMENT

SUITS BETWEEN PRIVATE PARTIES.

A. The Hobbs Act Solely Addresses Suits

Against The Government Seeking Equitable Or Declaratory Relief From Unlawful

Agency Action.

The Fourth Circuit’s cursory statutory analysis focused almost exclusively on a single phrase of the

Hobbs Act: the language in § 2342 giving the courts of

appeals “‘exclusive jurisdiction to enjoin, set aside,

suspend (in whole or in part), or to determine the validity of’” certain agency orders. Pet. App. 7a (quoting

28 U.S.C. § 2342). Without explaining the textual basis

for its conclusion, the Fourth Circuit read this language as “specifically stripp[ing] jurisdiction from the

district courts” to review “FCC interpretations of the

TCPA.” Pet. App. 7a, 8a. The Fourth Circuit then went

on to say, remarkably, that it was improper for the district court to attempt to “harmonize” the agency’s interpretation of the TCPA with the statutory text itself

because, when “the plain meaning of the regulation is

clear, our interpretive task is complete.” Pet. App.

13a–14a; contra Shalala v. Guernsey Mem’l Hosp., 514

U.S. 87, 95 (1995) (upholding agency’s “reading of

[Medicare] regulations” because it was “consistent

with the Medicare statute”); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 214 (1976) (rejecting SEC’s reading of Rule 10b-5 because it departed from “the language and history of s[ection] 10(b) [of the Exchange

Act] and related sections of [other] Acts”).

The Fourth Circuit’s radical reading of the Hobbs

Act finds no support in its text. The Act, rather, speaks

only to jurisdiction over a specific type of proceeding:

one for direct review of agency action, in which the petitioner seeks declaratory or injunctive relief against

the government.

The limited scope of the Hobbs Act is evident in

§ 2342 itself. That provision gives the courts of appeals

“exclusive jurisdiction” attached to a particular set of

remedies. What is made “exclusive” to the courts of appeals is the “jurisdiction to enjoin, set aside, suspend

(in whole or in part), or to determine the validity of”

certain agency actions, including, as relevant here, “all

final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47.” The

Fourth Circuit thus erred in reading the Hobbs Act to

speak to jurisdiction over “certain issue[s].” Pet. App.

8a (emphasis added). The statute is much narrower

than that. Rather than encompass all judicial review

of particular issues, such as “FCC interpretations of

the TCPA,” Pet. App. 7a, § 2342 defines the courts of

appeals’ “exclusive jurisdiction” in terms of specific

types of relief that a court of appeals alone may grant.

Only a court of appeals may enjoin an agency order

covered by the Hobbs Act. And only a court of appeals

may vacate the order, stay it, or enter declaratory relief against it. That is all § 2342 says about the exclusive scope of court of appeals review, and that is therefore all that the Hobbs Act precludes a district court

from doing.

Some of the courts that have reached the same basic

conclusion as the Fourth Circuit have sought to justify

a broader preclusive sweep by relying in isolation on

the phrase “determine the validity of” in § 2342. They

have reasoned that a court decides the “validity” of an

agency interpretation anytime it considers whether

the agency’s interpretation is consistent with the governing statute. E.g., Nack v. Walburg, 715 F.3d 680,

685–86 (8th Cir. 2013); CE Design, Ltd. v. Prism Bus.

Media, Inc., 606 F.3d 443, 445 (7th Cir. 2010). This interpretation, however, fails to consider the statutory

context in which the phrase “determine the validity of”

sits.

In particular, it ignores the “commonsense canon of

noscitur a sociis,” which “counsels that a [term] is

given more precise content by the neighboring words

with which it is associated,” Freeman v. Quicken

Loans, Inc., 566 U.S. 624, 634–35 (2012), and which “is

often wisely applied where a word is capable of many

meanings in order to avoid the giving of unintended

breadth to the Acts of Congress,” McDonnell v. United

States, 136 S. Ct. 2355, 2368 (2016). Here, the terms

that surround the phrase “determine the validity of”—

enjoin, vacate, and set aside—all plainly refer to forms

of relief. See Black’s Law Dictionary (10th ed. 2014)

(defining “set aside” as “to annul or vacate (a judgment, order, etc.)”). The canon thus counsels that “determine the validity of” refers simply to another form

of relief—declaratory relief.

Indeed, this Court has repeatedly used the phrase

“determine the validity” in precisely this sense. For example, this Court explained that the Declaratory

Judgment Act, 28 U.S.C. § 2201, permits “an insurance company [to] bring a declaratory judgment action

to determine the validity of insurance policies.” Calderon v. Ashmus, 523 U.S. 740, 746 (1998). Likewise, just

five years before the Hobbs Act’s enactment, in Railway Mail Ass’n v. Corsi, the Court noted that the appellant had initiated the litigation by “fil[ing] suit”

against a state agency “in a state court for a declaratory judgment to determine the validity of [a state statute], and related provisions, and for an injunction restraining its enforcement.” 326 U.S. 88, 91 (1945) (emphasis added). The courts of appeals of that era used

similar language to connote declaratory relief. See,

e.g., Gray v. N.M. Military Inst., 249 F.2d 28, 30–31

(10th Cir. 1957) (“The declaratory judgment remedy

may not be invoked merely to try issues or determine

the validity of defenses in pending cases.”).

Thus, in context, the natural reading of § 2342’s “exclusive jurisdiction” phrase is that it concerns “exclusive jurisdiction” over a grant of injunctive or declaratory relief against the government. Therefore, when no

such relief is sought—as in a private TCPA class action

suit for monetary damages—the Hobbs Act has no

bearing on the power of the district court to decide the

case.

A holistic look at the Hobbs Act’s text and structure

confirms this reading. “It is a fundamental canon of

statutory construction that the words of a statute must

be read in their context and with a view to their place

in the overall statutory scheme,” and “cannot be construed in a vacuum.” Roberts v. Sea-Land Servs., Inc.,

566 U.S. 93, 101 (2012); see also U.S. Nat’l Bank of Or.

v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455

(1993) (“[I]n expounding a statute, we must not be

guided by a single sentence or member of a sentence,

but look to the provisions of the whole law, and to its

object and policy.”). The Fourth Circuit, however, focused narrowly on the “exclusive jurisdiction” phrase

in § 2342, and failed to ask what clues about its meaning should be drawn from neighboring provisions.

Perhaps the single most telling clue comes from

§ 2349, entitled “Jurisdiction of the proceeding.” Section 2349(a), which parallels § 2342, expressly defines

the court of appeals’ “exclusive jurisdiction” with reference to the specific types of relief the court may

award. It provides that the court of appeals has “exclusive jurisdiction to make and enter . . . a judgment determining the validity of, and enjoining, setting aside,

or suspending, in whole or in part, the order of the

agency.” 28 U.S.C. § 2349(a) (emphasis added). This

provision resolves any doubts about the meaning of the

phrase “determine the validity of.” See Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018) (“[I]t is a normal

rule of statutory construction that identical words

used in different parts of the same act are intended to

have the same meaning.”). In tying the “determine the

validity” phrase to a “judgment,” § 2349 makes clear

that the phrase refers to a remedy that the courts of

appeals may enter as part of the judgment.

Other provisions of the Hobbs Act point in the same

direction by defining the rules and procedures for actions to obtain such judgments. The Act defines where

such actions may be brought, 28 U.S.C. § 2343 (“in the

judicial circuit in which the petitioner resides or has

its principal office, or in the United States Court of Appeals for the District of Columbia Circuit”); how, id.

§ 2344 (by “fil[ing] a petition to review” the final order); when, id. (“within 60 days” of entry of the final

order); by whom, id. (“[a]ny party aggrieved by the final order”); and against whom, id. (“against the United

States”). The Act as a whole thus spells out the metes

and bounds of the particular specialized “proceedings”

over which the courts of appeals’ jurisdiction is “exclusive.” And, just as importantly, it does not say a word

about any other type of judicial action in any other

court.

Further textual support appears in Section 402(a) of

the Communications Act, which the Hobbs Act incorporates by reference. See 28 U.S.C. § 2342(1). Mirroring § 2342, section 402(a) provides that, with certain

exceptions not applicable here, “[a]ny proceeding to enjoin, set aside, annul, or suspend any order of the Commission . . . shall be brought as provided by and in the

manner prescribed in chapter 158 of Title 28 [i.e., the

Hobbs Act].” 47 U.S.C. § 402(a). Like the Hobbs Act,

Section 402(a) speaks only to proceedings “brought” to

obtain non-monetary relief against the FCC; it does

not address judicial proceedings of other kinds,

brought against other parties in other courts.

The text of the Hobbs Act thus resolves the question

presented in this case. The Act establishes and regulates “proceedings” in which a party aims to obtain equitable or declaratory relief against the government

from allegedly unlawful agency action. A TCPA damages suit between two private parties plainly is not

such a “proceeding”—a point well illustrated by the

district court’s judgment in this case, which directs

that Carlton & Harris’s damages claim “be dismissed

and stricken from the docket of [the district] [c]ourt.”

Pet. App. 44a. That judgment—which no court of appeals could grant in a Hobbs Act proceeding—does not

affect the rights or duties of the FCC or any other part

of the government. It simply says that the plaintiff

shall take nothing from the defendant. Nothing in the

Hobbs Act precludes a defendant in a private damages

case from making the legal arguments necessary to

win that relief from a district court with jurisdiction

over the case under § 1331. The Fourth Circuit erred

in concluding otherwise.

B. The Administrative Procedure Act Confirms That A Defendant Generally May

Challenge Agency Action In A Judicial

Enforcement Proceeding.

The APA, which was enacted a few years before the

Hobbs Act, but long after Congress began to provide

regularized judicial supervision over agency actions

through “special statutory review proceeding[s],” 5

U.S.C. § 703, also compels reversal of the decision below. See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S.

270, 282 (1987) (recognizing that the APA “codifies the

nature and attributes of judicial review” under the

Hobbs Act).

Section 703 of the APA speaks directly to the question presented here. It first addresses how parties can

obtain direct review of agency action, providing that

they generally must avail themselves of any “special

statutory review proceeding,” such as that created by

the Hobbs Act, but can proceed under the APA itself

where no such proceeding is available. 5 U.S.C. § 703.

It then provides that, notwithstanding these pathways

to direct review, “agency action is subject to judicial

review in civil or criminal proceedings for judicial enforcement,” “[e]xcept to the extent that prior, adequate, and exclusive opportunity for judicial review is

provided by law.” Id. Thus, section 703 confirms that

agency action is reviewable in judicial enforcement

proceedings, except where another statute provides an

opportunity for judicial review that is (1) prior, (2) adequate, and (3) exclusive. Because PDR had no such

opportunity, section 703 confirms that PDR is entitled

to judicial review of the 2006 Order in this TCPA enforcement proceeding.

1. The Hobbs Act did not give PDR any prior or adequate opportunity for review of the 2006 Order because it denied PDR standing to seek such review. As

noted, § 2344 states that Hobbs Act review is available

only to a “party aggrieved” by agency action, and the

long established construction is that this phrase extends statutory standing under the Hobbs Act only to

those parties who participated in the agency proceeding; no others may petition for review under the Act.

Simmons, 716 F.2d at 42 (citing cases). PDR did not

participate in the proceedings that gave rise to the

2006 Order, and thus could not have petitioned under

the Hobbs Act.

2. If PDR had attempted to seek Hobbs Act review

after Carlton & Harris sued, it would have encountered a second problem—its petition would have been

hopelessly out of time. Section 2344 permits suit only

within 60 days after the agency issues a covered order,

and every court of appeals to consider the issue has

held that the time limit is jurisdictional and “may not

be enlarged or altered by the courts.” Nat. Res. Def.

Council v. Nuclear Regulatory Comm’n, 666 F.2d 595,

602 & n.43 (D.C. Cir. 1981) (citing cases from the Second, Fifth, and Eighth Circuits); see Council Tree

Inv’rs, Inc. v. FCC, 739 F.3d 544, 551 (10th Cir. 2014);

N.J. Dep’t of Envtl. Prot. & Energy v. Long Island

Power Auth., 30 F.3d 403, 414 (3d Cir. 1994); Tenn.

Pub. Serv. Comm’n v. ICC, 921 F.2d 277 (6th Cir. 1990)

(citing cases from Fifth and Ninth Circuits); Ill. Cent.

Gulf R.R. v. ICC, 720 F.2d 958, 960 (7th Cir. 1983);

P.A.K. Transp., Inc. v. United States, 613 F.2d 351, 353

n.1 (1st Cir. 1980). The time in which to seek Hobbs

Act review thus expired long before the current TCPA

suit began.

3. PDR had no practical reason to seek review of the

2006 Order during the allotted 60 days because the interpretive issue at the heart of this suit was not joined

until after the litigation began. Before then, readers of

the 2006 Order had no basis to suspect the FCC had

announced a “per se” rule barring faxed offers of free

goods and services, as Carlton & Harris argued below.4

That point is borne out by the fact that multiple courts

have rejected the construction of the 2006 Order’s language that the Fourth Circuit adopted below. See Phy-

sicians Healthsource, Inc. v. Boehringer Ingelheim

Pharm., Inc., 847 F.3d 92, 96 & n.1 (2d Cir. 2017).

Those courts have recognized that “not every” unsolicited fax promoting a free good or service satisfies the

rule announced in the 2006 Order. Id. at 96 (emphasis

added). Rather, for such a fax to fall under the 2006

Order, “[t]here must be a commercial nexus to a firm’s

business, i.e., its property, products, or services.” Id.;

see also Sandusky Wellness Ctr., LLC v. Medco Health

Sols., 788 F.3d 218, 223–24 (6th Cir. 2015) (“To be an

ad, the fax must promote goods or services that are for

sale, and the sender must have profit as an aim.”).

This “comports with the statutory language, which defines offending advertisements as those promoting ‘the

4 Indeed, as demonstrated in Part II, infra, all indications were

that the FCC had articulated a non-binding interpretation, rather

than a binding legislative rule.

commercial availability or quality of [the firm’s] property, goods, or services.’” Physicians Healthsource, 847

F.3d at 95 (alteration in original) (emphasis added)

(quoting 47 U.S.C. § 227(a)(5)). Thus, to say that PDR

should have sued in 2006 is essentially to contend that

it should have anticipated Carlton & Harris’s argument and initiated preemptive litigation against the

FCC to protect itself against such hypothetical, overbroad constructions of the 2006 Order that conflict

with the statute.

Even assuming that any court of appeals could or

would have entertained such an abstract dispute,

there is certainly no reason to view that kind of premature litigation as supplying an “adequate” opportunity for judicial review of the Commission’s legal interpretation. And the courts of appeals have not embraced that approach. Instead, they recognize that

with respect to generally applicable rules, the Hobbs

Act’s “time limit restricting judicial review of [agency]

action is applicable only to cut off review directly from

the order promulgating a rule,” not from subsequent

actions by an agency to enforce it. Functional Music,

Inc. v. FCC, 274 F.2d 543, 546 (D.C. Cir. 1958); see

Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d

142, 145 (D.C. Cir. 2014); Wind River Mining Corp. v.

United States, 946 F.2d 710, 714–15 (9th Cir. 1991);

Texas v. United States, 749 F.2d 1144, 1146 (5th Cir.

1985); Tri-State Motor Transit Co. v. ICC, 739 F.2d

1373, 1375 (8th Cir. 1984); Ill. Cent. Gulf R.R., 720

F.2d at 961.

That approach makes perfect sense. Because “administrative rules and regulations are capable of continuing application[,] limiting the right of review of the

underlying rule would effectively deny many parties

ultimately affected by a rule an opportunity to question its validity.” Functional Music, 274 F.2d at 546.

That would include parties that first come into existence after the 60-day direct review window has closed,

as well as parties for whom “the ultimate impact, or

even the likelihood of enforcement, of proposed rules

may be far from clear.” Gage v. U.S. Atomic Energy

Comm’n, 479 F.2d 1214, 1218 (D.C. Cir. 1973).

These concerns are particularly acute in the context

of the TCPA, which regulates literally every business

using auto-dialed or recorded calls, faxes, or text messages in the United States. See 47 U.S.C. § 227(b). In

the context of a more highly regulated industry, this

Court recognized the unreasonableness of expecting

“innumerable small businesses” to protect themselves

against agency overreach by staying abreast of rulemakings and bringing litigation against invalid rules.

Adamo Wrecking Co. v. United States, 434 U.S. 275,

283 n.2 (1978). It is all the more unrealistic to expect

businesses of every size in every field to protect themselves from unlawful TCPA regulations by scrutinizing the FCC docket and bringing pre-enforcement

challenges under the Hobbs Act—especially given that

the interval between the unlawful regulation and the

fax at issue might be years, as it was here.

4. The only other way to read section 703 would be

to say that the Hobbs Act’s 60-day window in 2006

somehow counts, for PDR, as the “prior, adequate, and

exclusive” review opportunity contemplated by the

APA. But that cannot be right, or else the exception

(no further review if the defendant already had a full,

fair and final opportunity) would swallow the rule

(“agency action is subject to judicial review in civil or

criminal proceedings for judicial enforcement”) where

agency rules of general applicability are concerned.

Such rules, by their nature, apply to all manner of parties who are not “aggrieved” under the Hobbs Act and

thus cannot personally obtain Hobbs Act review. See

Functional Music, 274 F.2d at 546. If the Act’s 60-day

window were the sole opportunity for all parties to

challenge a generally applicable regulation for all

time, the Hobbs Act would become a trap for the unwary, which never has been and cannot be the law.

This is not to say that the Hobbs Act never provides

a “prior, adequate, and exclusive” opportunity for judicial review. When an agency issues an order settling

the rights or duties of a specific party, that party is

undoubtedly “aggrieved” within the meaning of § 2344

and can challenge the order under the Hobbs Act. In

that circumstance, the distinction between direct and

enforcement review frequently collapses, and the

Hobbs Act furnishes a “prior, adequate, and exclusive”

mechanism for challenging the order, both facially and

as-applied. But this logic is limited to party-specific orders; for orders promulgating rules of general applicability, a party may not be “aggrieved” in any legal or

practical sense until it faces a judicial enforcement action. In that circumstance, section 703 preserves the

right to judicial review.

Two decisions of this Court illustrate the point. In

Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, a defendant in a suit for damages owed under a port agreement approved by the

Federal Maritime Commission sought to assert as a

defense that the agreement was invalid. See 400 U.S.

62, 64, 67 (1970). This Court held that the Hobbs Act

precluded that challenge because the defendant,

through an agent, had been party to a prior proceeding

before the Federal Maritime Commission seeking review of the agreement, and, after the commission upheld the agreement, both the defendant and its agent

had failed to seek timely judicial review. See id. at 69,

71–72. Thus, in every practical sense, the defendant

had a “prior, adequate, and exclusive” opportunity for

review of the agency order. As the Court emphasized,

although the defendant “was not named as a party [to

the agency proceedings], it was in fact represented before the Commission,” had “previously made numerous

claims to party status,” and had “interests [that] were

clearly at stake.” Id. at 71–72. Because the defendant

had both every motive and “every opportunity to participate before the Commission and then seek timely

review in the Court of Appeals,” id. at 72, this Court

refused to allow the defendant to challenge the order

in a district court proceeding.

FCC v. ITT World Communications, Inc., 466 U.S.

463 (1984), is to similar effect. There, ITT petitioned

the FCC for rulemaking regarding what sorts of agreements the FCC could enter into when negotiating with

foreign governments. See id. at 465–66. When the FCC

denied the petition, ITT sought review in the D.C. Circuit and concurrently filed suit in district court to enjoin the FCC from engaging in negotiations in the

manner ITT opposed. See id. at 466–67. This Court

held that the Hobbs Act precluded ITT from asking the

district court “to enjoin action that is the outcome of

[an FCC] order” where, “[i]n substance, the complaint

filed in the District Court raised the same issues and

sought to enforce the same restrictions upon agency

conduct as did the petition for rulemaking that was denied by the FCC.” Id. at 468. Thus, like Port of Boston,

ITT prohibited a collateral attack on an agency order

by a party that had a full and fair opportunity for judicial review under the Hobbs Act—i.e., the “prior, adequate, and exclusive” review envisioned by section

703.

Together, Port of Boston and ITT exemplify when it

may be appropriate to say that direct review of an

agency order qualifies as a “prior, adequate, and exclusive” opportunity for review. In those cases, the parties

who sought district court review had also been parties

(or had been adequately represented) in an agency proceeding that directly settled their legal rights and obligations. In that kind of setting, it generally can be

said that the party has had a full and fair opportunity

for review, and should not be permitted to evade the

“special statutory review proceeding” established by

Congress. See ITT, 466 U.S. at 468.

The same cannot be said where, as here, the agency

first acts by announcing a rule of general applicability,

and the defendant only later—much later—becomes

subject to an enforcement action. In that circumstance,

as the Functional Music line of cases recognizes, it

would be both unfair and impractical to treat the

Hobbs Act as having preclusive effect—and would also

flatly violate section 703’s command.

5. The Fourth Circuit’s holding is also at odds with

how courts have long interpreted other statutes that

commit direct review of agency orders to a court of appeals. Consistent with section 703, courts have not understood such statutes to preclude judicial review of

regulations when they are enforced in district court.

By casting doubt on that understanding, the Fourth

Circuit’s interpretation of the Hobbs Act would open

the door to a range of unjust and absurd consequences.

Examples of comparable statutory schemes are

found across the U.S. Code. For instance, orders promulgating occupational safety and health standards are

directly reviewable in the courts of appeals, see 29

U.S.C. § 655(f), but enforceable through civil and criminal proceedings in district court, see id. §§ 662(a),

666(e). Under the Fourth Circuit’s logic, the former

provision would preclude review in enforcement actions brought under the latter ones. Yet when the Secretary of Labor (or Department of Justice, in criminal

cases) has brought such enforcement actions, the

courts—including this one—have considered defendants’ arguments that the orders at issue are substantively invalid. See, e.g., Whirlpool Corp. v. Marshall,

445 U.S. 1, 4, 7–9 (1980) (in civil action to enjoin violation of a regulation promulgated under the Occupational Safety and Health Act, examining “whether this

regulation is consistent with the Act”); see also United

States v. Pitt-Des Moines, Inc., 970 F. Supp. 1346, 1354

(N.D. Ill. 1997) (in criminal prosecution for violation of

occupational safety regulation, considering argument

that regulation was procedurally invalid).

The same is true in the securities context. Under the

Exchange Act, courts of appeals have “exclusive” jurisdiction to directly review final orders and certain regulations issued by the Securities and Exchange Commission, see 15 U.S.C. § 78y(a)(1), (3); id. § 78y(b)(1),

(3), while the government may bring civil and criminal

actions to enforce those orders and regulations in district court, see id. §§ 78ff(a), 78u(d), 78u-1(a)(1). Again,

the Fourth Circuit’s logic would suggest that the provisions for direct review preclude judicial review in the

enforcement context. And, again, the practice has been

precisely the opposite. In enforcement proceedings,

this Court and others have routinely considered defendants’ arguments that the SEC’s interpretations of

the law, as reflected in orders and regulations, are substantively invalid, or must be narrowed to cohere with

the statute’s text. See, e.g., United States v. O’Hagan,

521 U.S. 642, 666–76 (1997) (SEC did not exceed its

statutory authority under § 14(e) of the Exchange Act

in adopting Rule 14e–3(a)); Ernst & Ernst, 425 U.S. at

212–14 (rejecting SEC interpretation of Rule 10b-5 as

inconsistent with text of the Exchange Act); SEC v. Alpine Sec. Corp., 308 F. Supp. 3d 775, 795–96 (S.D.N.Y.

2018) (considering defendant’s argument that Rule

17a–8 “is not a reasonable interpretation of the Exchange Act, and is therefore invalid”).

In short, if applied to the many materially indistinguishable judicial review statutes currently in effect,

the Fourth Circuit’s interpretation of the Hobbs Act

would curtail the defenses available to a large number

of parties in a wide range of contexts—including many

where defendants’ fortunes, livelihoods, and even liberty are directly at stake. This outcome is frankly unimaginable.

Worse, by broadly precluding judicial review in enforcement settings, the Fourth Circuit’s interpretation

of the Hobbs Act (and, by extension, other commonplace judicial review provisions) would produce all

manner of unfair and absurd results. For example, it

would allow agencies to effectively insulate their interpretations from review by enforcing them in district

court rather than in administrative proceedings subject to direct court of appeals review. It would also

mean that if Congress decided to supersede an agency

interpretation by enacting a new statute, the statute

could not be given effect in an enforcement suit until

the agency itself revised its preexisting regulations.

That is so because, under the Fourth Circuit’s rule, a

district court would have no power to consider whether

the agency’s old interpretation was consistent with the

new law. And if the agency announced that its interpretation of the new law was identical to its interpretation of the old one, a district court would likewise be

powerless to protect defendants.

It is improbable, to say the least, that Congress intended to subordinate both its own powers and those

of the courts to administrative agencies in these ways.

And if Congress really did intend such consequences,

at a minimum it would have to speak more explicitly

than it did in the Hobbs Act.

6. Indeed, it bears emphasis that in the unusual circumstance where Congress has in fact intended to preclude judicial review of agency interpretations even in

enforcement proceedings, it has expressed that intention in no uncertain terms. The Clean Water Act provides one example. Section 1369(b)(1) “enumerates

seven categories of EPA actions for which review lies

directly and exclusively in the federal courts of appeals.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct.

617, 624 (2018); see 33 U.S.C. § 1369(b)(1). Paragraph

(b)(2) then states: “Action of the Administrator with

respect to which review could have been obtained under paragraph (1) of this subsection shall not be subject

to judicial review in any civil or criminal proceeding

for enforcement.” 33 U.S.C. § 1369(b)(2) (emphasis

added). Provisions of the Clean Air Act and of CERCLA—both of which commit direct review of covered

orders exclusively to a court of appeals—are similar.

See 42 U.S.C. § 7607(b)(2); id. § 9613(a).

That Congress felt the need in these statutes to specify that review is unavailable in “civil or criminal proceeding[s] for enforcement” is significant. Under the

Fourth Circuit’s view, the fact that these statutes contain direct review provisions that route “exclusive” jurisdiction to the courts of appeals would alone suffice

to preclude district courts from reviewing orders in enforcement proceedings—in other words, the provisions

expressly precluding such review would be unnecessary. This Court, however, is “hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.”

Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998). The better interpretation, which “give[s] effect ... to every

clause and word” of the environmental statutes, is that

the provisions constraining judicial review in enforcement proceedings are meaningful because the direct

review provisions, standing alone, say nothing about

that issue. Setser v. United States, 566 U.S. 231, 239

(2012) (ellipsis in original). Section 703 of the APA confirms that interpretation by providing that even when

direct review of agency orders lies exclusively in courts

of appeals, the default rule is that district courts may

review such orders in enforcement proceedings. Because the Hobbs Act leaves that default rule intact, the

Fourth Circuit’s view that it bars judicial review in a

private enforcement action is wrong.

C. The Presumption Of Reviewability Of

Agency Action Supports Construing The

Hobbs Act Narrowly.

To the extent the Hobbs Act and APA leave any ambiguity, the “strong presumption that Congress intends judicial review of administrative action” counsels against construing the Act to preclude a defendant

from obtaining review of the FCC’s interpretation of

the TCPA in an enforcement action. Bowen v. Mich.

Acad. of Family Physicians, 476 U.S. 667, 670 (1986).

Without that ability, many defendants will have no opportunity for judicial review of the orders being enforced against them because, in most cases, the 60-day

window for direct review under the Hobbs Act will

have long since closed.

To address this problem, some courts that have read

the Hobbs Act as the Fourth Circuit did here have suggested that TCPA defendants may pursue judicial review by (1) filing a petition for reconsideration or rulemaking with the FCC and then (2) appealing any adverse decision by the FCC to a court of appeals. See,

e.g., Leyse v. Clear Channel Broad., Inc., 545 F. App’x

444, 459 (6th Cir. 2013); Nack, 715 F.3d at 682. This

suggestion, however, ignores that section 703 preserves the right to review in enforcement actions unless another route is “prior, adequate and exclusive,”

and that the option of filing a petition with the agency

after a suit commences is none of the above. Neither

the petitions nor the eventual court of appeals proceeding would be prior to the enforcement suit. Moreover,

the court of appeals proceeding would not actually review the “agency action” at issue in the TCPA suit; rather, it would review the distinct agency action resulting from the new petition. Cf. Bhd. of Locomotive

Eng’rs, 482 U.S. at 278–80 (distinguishing a decision

respecting a petition to reopen a proceeding from the

decision in the underlying proceeding itself).

There are also serious practical problems with these

alternatives that will prevent them, in most if not all

instances, from providing pathways to judicial review

of an underlying rule. For reconsideration and declaratory ruling petitions, the main problem is one of timing. A petition for reconsideration must be filed within

30 days of an order’s promulgation. See 47 U.S.C.

§ 405(a); 47 C.F.R. § 1.104(b). In almost every conceivable enforcement setting, that deadline will have long

passed before a plaintiff’s complaint alerts a defendant

to the problem. Petitions for declaratory rulings are

generally useless in this setting for a similar reason.

The FCC has opined that “[t]o allow ... parties to challenge the validity of [a] rule via a request for declaratory ruling years after a rule has been promulgated

would effectively circumvent the statutory channels

for review of Commission rules.” Rules & Regulations

Implementing the Tel. Consumer Prot. Act of 1991, 29

FCC Rcd. 13998, 14006 (2014), vacated sub nom. Bais

Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C.

Cir. 2017), cert. denied, 138 S. Ct. 1043 (2018). In other

words, the FCC generally rejects the premise that a

declaratory ruling may be used as a substitute for the

direct review available under the Hobbs Act.

Petitions for new rulemakings pose a different but

equally fundamental problem. “[A] statutory grant of

legislative rulemaking authority will not, as a general

matter, be understood to encompass the power to

promulgate retroactive rules unless that power is conveyed by Congress in express terms.” Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). No

such language appears in the TCPA. Thus, any new

rules would be prospective, and a new prospective rule

will not do anything to protect a defendant from liability for past conduct. Relief can come only from an adjudication of what the law was at the time of the defendant’s relevant acts. That adjudication is naturally

provided by a court—the court that has jurisdiction

over the claims lodged against the defendant.

Another practical problem is that petitions for rulemaking and declaratory orders frequently drag on for

years. See, e.g., Bais Yaakov, 852 F.3d at 1081 (holding, in 2017, that the FCC lacked authority to issue

TCPA regulation concerning solicited faxes and vacating a 2014 FCC order denying a petition for a declaratory ruling filed in 2010); cf. In re Pesticide Action Network N. Am., 798 F.3d 809, 814 (9th Cir. 2015) (granting mandamus following eight-year delay in resolving

petition); In re Core Commc’ns, Inc., 531 F.3d 849, 857

(D.C. Cir. 2008) (describing six-year delay in responding to judicial remand); Telecomms. Research & Action

Ctr. v. FCC, 750 F.2d 70, 80–81 (D.C. Cir. 1984) (describing FCC delays of two, four, and five years in resolving petitions).

The district court presiding over the TCPA suit can,

of course, grant a discretionary stay of the action while

the defendant pursues matters with the agency. But

courts in TCPA suits have denied requests for such

stays, viewing the route to Hobbs Act review as long

and the outcome, uncertain. See, e.g., Edwards v.

Oportun, Inc., 193 F. Supp. 3d 1096, 1101 (N.D. Cal.

2016) (denying stay pending issuance of D.C. Circuit

decision on validity of TCPA regulation because there

was “no certain way to determine when a ruling will

be forthcoming”); Lathrop v. Uber Techs., Inc., 2016

WL 97511, at *5 (N.D. Cal. Jan. 8, 2016) (similar); Hofer v. Synchrony Bank, 2015 WL2374696, at *2–3 (E.D.

Mo. May 18, 2015) (similar).5 For defendants in such

cases, the Hobbs Act pathway will often be too slow to

make any difference in the TCPA suit.

Further, even if a stay of the TCPA action were certain, the length and expense of litigating an entirely

separate action through multiple levels of agency and

judicial review would be prohibitive for many defendants. Cf. Bridgeview Health, 816 F.3d at 941 (noting

that the TCPA has “become the means of targeting

small businesses”). This problem is especially severe

because TCPA suits, including this one, are commonly

brought as class actions seeking uncapped statutory

damages. Faced with the risks inherent in such actions, many defendants will settle early on, “rather

than incur the costs of defending a class action and run

the risk of potentially ruinous liability.” Fed. R. Civ. P.

23(f) advisory committee’s note to 1998 amendment;

see AT&T Mobility LLC v. Concepcion, 563 U.S. 333,

350 (2011) (recognizing “the risk of ‘in terrorem’ settlements that class actions entail”); ACA Int’l, 885 F.3d

5 To be sure, some courts have granted stays in such circumstances. See Flockhart v. Synchrony Bank, 2017 WL 3276266, at

*3 (N.D. Iowa Aug. 1, 2017) (granting stay, noting that “[f]ederal

courts have split decisions in motions to stay TCPA violation

cases” pending Hobbs Act review of underlying FCC rules, and

citing cases). But the fact remains that in cases that are not

stayed, defendants risk losing the opportunity for any meaningful

judicial review.

at 693 (noting a “surge in TCPA lawsuits (including

class actions) in recent years”).

D. The Fourth Circuit’s Interpretation Of

The Hobbs Act Raises Grave Constitutional Concerns That Can And Should Be

Avoided.

The canon of constitutional avoidance further supports PDR’s narrower construction of the Hobbs Act.

If, as PDR contends, the Hobbs Act simply routes

claims against the government for injunctive and declaratory relief from certain agency actions to the

courts of appeals rather than the district courts, then

the Act does not raise any constitutional concerns—it

is uncontroversial that Congress may distribute jurisdiction over such causes of action among Article III

courts.

But if, as the Fourth Circuit held, the Hobbs Act’s

grant of “exclusive jurisdiction” over proceedings for

injunctive and declaratory relief also operates, implicitly, to bar district courts from considering statutory

defenses raised by defendants in damages suits between private parties, then the Hobbs Act poses at

least two grave constitutional questions.

The first, based on fundamental notions of due process, concerns whether Congress may bind defendants

to the results of agency proceedings that are not challenged within a 60-day period, or are challenged only

by other parties. The second, arising under Article III,

concerns whether Congress may require the courts, in

deciding cases properly before them, to slavishly apply

an agency’s interpretation of a statute. Long established principles of constitutional avoidance counsel

against adopting the construction “that raises serious

constitutional doubts,” and in favor of “adopt[ing] an

alternative” construction like PDR’s, which is consistent with the statute’s text and ”avoids those problems.” Jennings v. Rodriguez, 138 S. Ct. 830, 836

(2018).

The Fourth Circuit’s Interpretation

Raises Grave Due Process Concerns.

Under the Fourth Circuit’s interpretation, the Hobbs

Act imposes what is in essence a severe form of issue

preclusion, barring TCPA defendants from litigating

issues in a TCPA suit that could have been decided in

a proceeding for direct review under the Hobbs Act,

even if they never actually were. This approach jettisons several limits on issue preclusion essential to respecting due process.

The traditional rule of issue preclusion is that

“[w]hen an issue of fact or law is actually litigated and

determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between

the parties, whether on the same or a different claim.”

B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct.

1293, 1303 (2015) (alteration in original) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 27, at 250

(1980)). Critically, preclusion requires the estopped

party to have had “a full and fair opportunity to litigate” the issue in the prior proceeding. Taylor v.

Sturgell, 553 U.S. 880, 892 (2008).

These requirements are part of a “deep-rooted historic tradition that everyone should have his own day

in court.” Id. at 892–93. They represent constitutional

boundaries that neither courts nor Congress may

transgress. As this Court has repeatedly recognized,

“[i]t is a violation of due process for a judgment to be

binding on a litigant who was not a party or a privy

and therefore has never had an opportunity to be

heard.” Parklane Hosiery Co. v. Shore, 439 U.S. 322,

327 n.7 (1979). Litigants “who never appeared in a

prior action [] may not be collaterally estopped without

litigating the issue.” Blonder-Tongue Labs., Inc. v.

Univ. of Ill. Found., 402 U.S. 313, 329 (1971); accord

Richards v. Jefferson Cty., 517 U.S. 793, 797 n.4

(1996).

The Fourth Circuit’s decision applied the Hobbs Act

in precisely the manner these decisions prohibit. PDR

was not a party to the agency proceedings that underlie the 2006 Order, let alone to a prior relevant litigation. Thus, the Fourth Circuit’s conclusion that PDR is

effectively estopped from raising any argument bearing on the consistency between the 2006 Order and the

TCPA itself raises grave due process concerns.6

The Fourth Circuit’s Interpretation

Raises Severe Separation of Powers

Concerns.

As interpreted by the Fourth Circuit, the Hobbs Act

would also raise a serious question about whether

6 This Court has not considered the constitutionality of provisions in the Clean Air Act and other statutes expressly precluding

judicial review of agency actions in enforcement proceedings. See

Harrison v. PPG Indus., Inc., 446 U.S. 578, 592 n.9 (1980); supra

at 37 (describing such provisions). Its decision in Adamo Wrecking Co. v. United States, however, recognized that the “severity”

of such provisions warrants narrowly construing the range of actions to which they apply. 434 U.S. at 282–84 & n.2. Furthermore,

Justice Powell, who provided the fifth vote in Adamo Wrecking,

stressed in a concurring opinion in that case that the “constitutional validity” of such provisions “merited serious consideration.”

Id. at 289 (Powell, J. concurring); see also Harrison, 446 U.S. at

594 (Powell, J., concurring) (“I continue to have reservations

about the constitutionality of the notice and review preclusion

provisions of [the Clean Air Act].”). The D.C. Circuit has likewise

recognized the “substantial due process question” such provisions

pose. Chrysler Corp. v. EPA, 600 F.2d 904, 913 (D.C. Cir. 1979).

Congress has improperly intruded upon the defining

attribute of Article III judicial power—the Judiciary’s

authority “‘to say what the law is’ in particular cases

and controversies.” Bank Markazi v. Peterson, 136 S.

Ct. 1310, 1322 (2016) (quoting Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177 (1803)); see also Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230

(1986) (“under the Constitution, one of the Judiciary’s

characteristic roles is to interpret statutes”).

According to the Fourth Circuit, the Hobbs Act “specifically stripped jurisdiction from the district court[]”

to determine the meaning of the TCPA in this case.

Pet. App. 8a. In truth, the Fourth Circuit’s characterization of this supposed statutory command as “jurisdiction-stripping” is inapt. The district court clearly

had subject-matter jurisdiction over the suit. See Mims

v. Arrow Fin. Servs., LLC, 565 U.S. 368, 376 (2012)

(federal and state courts have concurrent jurisdiction

over private suits arising under the TCPA). But under

the Fourth Circuit’s view of the Hobbs Act, the district

court nonetheless lacked authority to consider the dispositive legal question at the heart of that suit—the

meaning of the statute that Carlton & Harris seeks to

punish PDR for (supposedly) violating.

On that view, the Hobbs Act raises one of the deepest

questions in the federal courts canon: the extent of

Congress’s power to strip Article III courts of the

power to decide legal questions central to the “Cases

or Controversies” pending before them.7 Outside the

7 The question runs so deep in the canon that a variation upon

it features in Professor Hart’s famous dialectic: “Name me a single Supreme Court case that has squarely held that, in a civil enforcement proceeding, questions of law can be validly withdrawn

from the consideration of the enforcement court where no adequate opportunity to have them determined by a court has been

previously accorded. When you do, I’m going back to re-think

context of a “war-time emergency measure,” Yakus v.

United States, 321 U.S. 414, 431 (1944), this Court has

never directly addressed this question, but its decisions bearing on related questions concerning the intersection between the Legislative and Judicial powers, running back to at least United States v. Klein, 80

U.S. (13 Wall.) 128 (1872), cast serious doubt on

whether Congress may do so. In recently summing up

those decisions in Bank Markazi, this Court treated it

as beyond dispute that Congress “may not usurp a

court’s power to interpret and apply the law to the [circumstances] before it,” and quoted Marbury v. Madison for the proposition that “[t]hose who apply [a] rule

to particular cases, must of necessity expound and interpret that rule.” 136 S. Ct. at 1323 (quoting 5 U.S. (1

Cranch) at 177) (alterations in original). In City of Arlington v. FCC, this Court declared that while “Congress has the power (within limits) to tell the courts

what classes of cases they may decide,” it may not “prescribe or superintend how they decide those cases.”

569 U.S. 290, 297 (2013). And in Plaut v. Spendthrift

Farm, Inc., this Court read the “record of history” to

demonstrate that the Founders crafted Article III

“with an expressed understanding that it gives the

Federal Judiciary the power, not merely to rule on

cases, but to decide them.” 514 U.S. 211, 218–19

(1995). These statements cast profound doubt on

whether the Hobbs Act is constitutionally valid if interpreted to prevent courts presiding over private

damages disputes, such as cases arising under the

TCPA, from considering what that statute means.

That the Hobbs Act, as construed by the Fourth Circuit, does not just remove from the Judiciary the power

Marbury v. Madison.” Henry M. Hart, Jr., The Power of Congress

to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1378–79 (1953) (footnotes omitted).

to interpret the law, but takes the further step of vesting that power in a mix of Executive and independent

agencies, only worsens the separation-of-powers problem. This Court has carefully reserved to Article III

courts the right to review the legal conclusions reached

by agencies. Most notably, in Crowell v. Benson, the

Court turned aside an Article III objection to a statute

that insulated an agency’s findings of fact from judicial

review, reasoning in part that this insulation was

“deemed to relate only to determinations of fact,” not

of law. 285 U.S. 22, 49 (1932); see also St. Joseph Stock

Yards Co. v. United States, 298 U.S. 38, 84 (1936)

(Brandeis, J., concurring) (“The supremacy of law demands that there shall be opportunity to have some

court decide whether an erroneous rule of law was applied and whether the proceeding in which facts were

adjudicated was conducted regularly.”). Crowell has

since been read for the proposition “that the judicial

review afforded by the statute, including review of

matters of law, ‘provides for the appropriate exercise

of the judicial function in this class of cases,’” i.e., those

“concern[ing] obligations among private parties.”

Thomas v. Union Carbide Agric. Prods. Co., 473 U.S.

568, 587 (1985) (quoting Crowell, 285 U.S. at 293). By

reading the Hobbs Act to strip away judicial review of

a critical legal dispute between private litigants, the

Fourth Circuit’s decision does serious violence to foundational safeguards of the administrative state.

As explained above, there are plenty of reasons for

the Court to reject the Fourth Circuit’s interpretation,

even before reaching constitutional avoidance. But

there is certainly no reason for this Court to read this

commonplace agency review statute in the sweeping

manner the Fourth Circuit did when the more than

plausible construction offered by PDR avoids these

fundamental difficulties. See Jennings, 138 S. Ct. at

836; Clark v. Martinez, 543 U.S. 371, 381 (2005)

(grounding the avoidance canon in the “reasonable

presumption” that when a statute has two plausible

interpretations, “Congress did not intend the alternative which raises serious constitutional doubts”).

II. ALTERNATIVELY, THE DISTRICT COURT

WAS NOT REQUIRED TO ACCEPT THE

FCC’S INTERPRETATION IN THIS CASE

BECAUSE THE AGENCY STATEMENTS AT

ISSUE ARE NOT BINDING ON THE COURTS

OR ANY PRIVATE PARTY.

The Fourth Circuit’s decision is also wrong for a reason entirely independent of its misconstruction of the

Hobbs Act. The Fourth Circuit assumed, without analysis, that the FCC’s discussion of offers for free goods

and services in the 2006 Order was a legislative rule,

which binds courts and private parties, rather than an

interpretive rule, which does not. That discussion in

the 2006 Order, however, bears all the hallmarks of an

interpretive rule. Therefore, under both general principles of administrative law and the text of the Hobbs

Act, the district court was neither bound by the FCC’s

interpretation nor required to defer to it. It was free to

construe the TCPA for itself and determine that PDR

had not violated the statute.

The distinction between legislative and interpretive

rules is central to administrative law. A legislative

rule has the “force and effect of law,” Chrysler Corp. v.

Brown, 441 U.S. 281, 295 (1979), and thus binds

courts, private parties, and the agency itself to its

terms. E.g., Appalachian Power Co. v. EPA, 208 F.3d

1015, 1021 (D.C. Cir. 2000). Interpretive rules, in contrast, “do not have the force and effect of law and are

not accorded that weight in the adjudicatory process.”

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1204

(2015). Rather, their “critical feature” is that they are

issued by an agency to advise the public of the agency’s

construction of the statutes and rules which it administers.” Id. Put another way, “interpretive rules or policy statements will not [bind agency discretion or private party conduct], regardless of their validity.” Viet.

Veterans of Am. v. Sec’y of the Navy, 843 F.2d 528, 537

(D.C. Cir. 1988).

The Fourth Circuit did not expressly consider

whether the discussion of offers for free goods and services in the 2006 Order is a legislative rule, but that is

the only reading that makes sense of the Fourth Circuit’s assertion that it would be nonsensical “[t]o hold

that a district court cannot enjoin or set aside a rule

but is nevertheless free to ignore it (or decline[] to defer to it).” Pet. App. 10a–11a (internal quotation marks

and citation omitted). That reading likewise finds support in the Fourth Circuit’s repeated references to the

FCC’s interpretation as a “regulation,” the “plain

meaning” of which controlled the rights and obligations of the parties. Pet. App. 13a–14a. The Fourth

Circuit plainly assumed that the FCC’s interpretation

constitutes a “legislative rule.”

That assumption was too simplistic because the distinction between interpretive and legislative rules is

critical in this case. First, the Hobbs Act does not apply

at all to interpretive rules. An FCC rule is an “order”

reviewable under 47 U.S.C. § 402(a), and hence subject

to the Hobbs Act’s provisions, only if it has the “force

of law” in the sense that it “sets a standard of conduct

for all to whom its terms apply.” Columbia Broad. Sys.,

Inc. v. United States, 316 U.S. 407, 418 (1942). Interpretive rules do not have that effect.

Second, the distinction between interpretive and legislative rules goes directly to the Fourth Circuit’s perception that there was something untoward about the

district court’s refusal to automatically apply the interpretation set forth in the 2006 Order. In the Fourth

Circuit’s view, the Hobbs Act barred the district court

from declining to treat that interpretation as establishing the rule of decision. But there is no such disconnect if the FCC’s interpretation is properly regarded as an interpretive rule or general policy statement because “a court is not required to give effect to

an interpretative regulation.”8 Batterton v. Francis,

432 U.S. 416, 425 n.9 (1977).

The FCC’s discussion of “offers for free goods and

services and informational messages” bears all of the

hallmarks of a non-binding interpretive rule or policy

statement because it serves to clarify the agency’s interpretation of the TCPA and expectations for its own

enforcement practices. It does not impose new commands upon private parties or courts.

As noted, the “critical feature of interpretive rules is

that they are issued by an agency to advise the public

of the agency’s construction of the statutes and rules

which it administers.” Perez, 135 S. Ct. at 1204. The

Commission’s discussion concerning “offers for free

goods and services and informational messages” does

8 Of course, even if the district court were bound by the FCC’s

rule, PDR’s position remains that the district court’s interpretation of that rule was correct, in light of the text of the TCPA and

the plain language of the 2006 Order itself. See Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984);

Sandusky, 788 F.3d at 223 (holding that the “unambiguous

terms” of the TCPA apply only to faxes with “commercial components” (internal quotation marks omitted)); cf. Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013) (holding that advocating

for a “purposeful but permissible reading of the regulation to

bring it into harmony with the statute” is not tantamount to

“seek[ing] an implicit declaration that the ... regulations were invalid as written” (internal quotation marks and ellipses omitted)).

just that, and nothing more. It explains the Commission’s general understanding that the TCPA regulates

commercial fax messages while leaving “noncommercial speech” unregulated. 21 FCC Rcd. at 3810 n.156.

It outlines the Commission’s view that fax messages

that “promote goods or services” qualify as “unsolicited

advertisements,” even if the commercial “promot[ion]”

takes on nominally “no cost” features. Id. at 3814. It

introduces the Commission’s understanding that “informational messages” are an aspect of the “noncommercial speech” that the TCPA leaves unregulated. Id.

at 3814 & n.156. And, critically, it lays out a non-exhaustive lists of factors the Commission expects to

“consider” on a “case-by-case basis” in distinguishing

between “informational messages,” on the one hand,

and “commercial” messages that “promote goods or

services,” on the other. Id. at 3814–15 & n.187. The

FCC’s interpretation thus advises the regulated community on how the Commission “will exercise its broad

enforcement discretion ... under some extant statute or

rule.” Ass’n of Flight Attendants-CWA v. Huerta, 785

F.3d 710, 716 (D.C. Cir. 2015) (quoting Nat’l Mining

Ass’n v. McCarthy, 758 F.3d 243, 252 (D.C. Cir. 2014)).

Furthermore, unlike a “legislative rule,” nothing in

the relevant paragraphs of the FCC’s order purports to

create new, binding obligations for private parties or

to alter anything in a prior Commission regulation.

See United States v. Picciotto, 875 F.2d 345, 347–48

(D.C. Cir. 1989) (explaining that interpretive rules

“merely restate existing duties, rather than creat[e]

new duties”). This is in sharp contrast to many other

sections of the 2006 Order, which made amendments

to the Commission’s prior legislative rules and thus

were presaged by a notice of proposed rulemaking and

reflected in amendments to codified regulations. For

example, just a few pages prior to the “offers for free

goods and services and informational messages” discussion, the Commission noted that it had “sought

comment in the [Junk Fax Prevention Act] NPRM” on

how to allocate responsibility for transmission of unsolicited faxes between third party agents or broadcasters, on the one hand, and the requesting entity, on the

other. 21 FCC Rcd. at 3807. The Commission then answered that question by concluding that “the sender is

the person or entity on whose behalf the advertisement

is sent,” id. at 3808; “adopt[ed] a definition of sender

for purposes of the facsimile advertising rules,” id.;

and codified just such a definition in its rules, see 47

C.F.R. § 64.1200(f)(8) (2006) (“The term sender for purposes of paragraph (a)(3) of this section means the person or entity on whose behalf a facsimile unsolicited

advertisement is sent or whose goods or services are

advertised or promoted in the unsolicited advertisement”). The Commission did nothing like this with respect to “offers for free goods and services and informational messages.” It said only that it was responding to petitions for clarification and reconsideration

that had been filed in response to the 2003 order, 21

FCC Rcd. at 3814 nn.185 & 187, 3815 n.188, and offered views of the law that bore on the issues raised by

the petitioners. The Commission did not codify its

views in its TCPA regulations.

For all these reasons, the Commission’s interpretation of 47 U.S.C. § 227(a)(5), as applied to “offers for

free goods and services and informational messages,”

is properly categorized as a non-binding interpretive

rule or policy statement. Accordingly, the Commission’s interpretation was not reviewable under 47

U.S.C. § 402(a) or the Hobbs Act, and the district

court’s review of the Commission’s interpretation

raised no jurisdictional questions respecting the Hobbs

Act. Because the Commission’s interpretation is not

binding, the district court was not obliged to apply it,

and was instead free to interpret the TCPA in light of

its text and context and—correctly—to grant PDR’s

motion to dismiss Carlton & Harris’s statutory damages claims.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be reversed.

Respectfully submitted,

JEFFREY N. ROSENTHAL

BLANK ROME LLP

130 N. 18th Street

Philadelphia, PA 19103

(215) 569-5553

ANA TAGVORYAN

BLANK ROME LLP

2029 Century Park East

6th Floor

Los Angeles, CA 90067

(424) 239-3400

CARTER G. PHILLIPS *

KWAKU A. AKOWUAH

DANIEL J. FEITH

KURT A. JOHNSON

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Petitioners

January 8, 2019

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.