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

Supreme Court briefJan 15, 2019

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No. 17-1705

In the Supreme Court of the United States

_______________

PDR NETWORK, LLC, et al.,

Petitioners,

v.

CARLTON & HARRIS CHIROPRACTIC, INC.,

Respondent.

_______________

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

_______________

BRIEF OF PROFESSOR ADITYA BAMZAI AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

_______________

ADITYA BAMZAI

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

580 Massie Road

Charlottesville, VA 22903

(434) 243-0698

abamzai@law.virginia.edu

Counsel for Amicus Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – W ASHINGTON, D.C. 20002

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.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................................... i

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

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT ..................................... 1

BACKGROUND .......................................................... 5

A.

Constitutional framework ............................ 5

B.

Agency review statutes .............................. 12

1.

Early statutory review mechanisms. .. 12

2.

Emergency Price Control Act. ............. 15

3.

The Administrative Procedure Act. .... 19

4.

Administrative Orders Review Act. .... 20

ARGUMENT ............................................................. 24

A.

The Hobbs Act’s use of the term

“determine the validity of” incorporated

preexisting statutory usage. ...................... 24

B.

A court does not “determine the

validity of” a regulation by

disagreeing with the interpretation

embraced in the regulation. ....................... 29

CONCLUSION .......................................................... 34

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adamo Wrecking Co. v. United States,

434 U.S. 275 (1978) ................................ 11-12, 32

Bank Markazi v. Peterson,

136 S. Ct. 1310 (2016) ......................................... 6

Bowles v. Willingham,

321 U.S. 503 (1944) ............................................. 6

Branch v. Smith,

538 U.S. 254 (2003) ........................................... 25

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) ...................................... 32-33

Chrysler Corp v. EPA,

600 F.2d 904 (D.C. Cir. 1979) ........................... 32

Consolo v. Federal Maritime Commission,

383 U.S. 607 (1965) ........................................... 31

Erlenbaugh v. United States,

409 U.S. 239 (1972) ........................................... 25

Fast v. DiSalle,

193 F.2d 181 (Emergency Ct. App. 1951) ......... 33

FCC v. ITT World Communications, Inc.,

466 U.S. 463 (1984) ........................................... 31

iv

TABLE OF AUTHORITIES—CONT’D

Page(s)

Florida Power & Light Co. v. Lorion,

466 U.S. 463 (1984) ........................................... 31

Hall v. Hall,

138 S. Ct. 1118 (2018) ..................................... 2, 4

Harrison v. PPG Indus., Inc.,

446 U.S. 578 (1980) ........................................... 12

Hertz Corp v. Friend,

559 U.S. 77 (2010) ............................................. 33

ICC v. Brotherhood of Locomotive Engineers,

482 U.S. 270 (1987) ........................................... 31

Lockerty v. Phillips,

319 U.S. 182 (1943) ........................................... 17

Port of Boston Marine Terminal Association v.

Rederiaktiebolaget Transatlantic,

400 U.S. 62 (1970) ........................................ 30-31

United States v. Klein,

80 U.S. (13 Wall.) 128 (1872) .............................. 6

United States v. Los Angeles & S.L.R. Co.,

273 U.S. 299 (1927) ........................................... 13

United States v. Mendoza-Lopez,

481 U.S. 828 (1987) ..................................... 11, 32

Yakus v. United States,

321 U.S. 414 (1944) ................................... passim

v

TABLE OF AUTHORITIES—CONT’D

Page(s)

Constitutional, Statutory, & Regulatory

Provisions

U.S. Const. art. III, § 1 ................................................ 5

U.S. Const. amend. V .................................................. 5

5 U.S.C. § 703 ............................................................ 19

5 U.S.C. § 706 ............................................................ 19

28 U.S.C. § 2342 ................................................ 1, 3, 30

28 U.S.C. § 2343 ........................................................ 23

28 U.S.C. § 2344 ........................................................ 23

28 U.S.C. § 2349 ........................................................ 23

28 U.S.C. §§ 2341-2351 ............................................... 2

Act to Establish a Court of Private Land Claims,

26 Stat. 854 (1891) ............................................. 15

Administrative Orders Review Act,

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

Administrative Procedure Act,

60 Stat. 237 (1946) ........................................ 19-20

Communications Act of 1934,

48 Stat. 1064 (1934) ........................................... 14

Emergency Price Control Act of 1942,

56 Stat. 23 .................................. 6-8, 15, 17, 20, 28

Hepburn Act,

34 Stat. 584 (1906) ............................................. 13

vi

TABLE OF AUTHORITIES—CONT’D

Page(s)

Inflation Control Act of October 2, 1942,

56 Stat. 765 ........................................................... 6

Mann-Elkins Act,

36 Stat. 539 (1910) ............................................. 13

Packers and Stockyards Act,

42 Stat. 159 (1921) ............................................. 14

Perishable Agricultural Commodities Act,

46 Stat. 531 (1930) ............................................. 14

Shipping Act of 1916,

39 Stat. 728 (1916) ............................................. 14

Stabilization Extension Act,

58 Stat. 632 (1944) .................................. 11, 18-19

Urgent Deficiencies Act,

38 Stat. 208 (1913) ........................................ 12-13

Revised Maximum Price Regulation No. 169,

7 Fed. Reg. 10381 et seq. ...................................... 6

Miscellaneous

Attorney General’s Manual on the

Administrative Procedure Act (1947) ...................19-20

Aditya Bamzai,

The Origins of Judicial Deference to Executive

Interpretation,

126 Yale L.J. 908 (2017) .................................... 33

vii

TABLE OF AUTHORITIES—CONT’D

Page(s)

Richard H. Fallon, Jr. et al.,

Hart and Wechsler’s

The Federal Courts and the Federal System

(7th ed. 2015) ....................................................... 6

Felix Frankfurter,

Some Reflections on the Reading of Statutes,

47 Colum. L. Rev. 527 (1947) ............................ 24

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) ............................. 10

Louis L. Jaffe,

Judicial Control of

Administrative Action (1965) ............................ 13

Caleb Nelson,

Statutory Interpretation (2011) ......................... 25

Price-Control Bill,

Hearings before the Committee on

Banking and Currency, House of

Representatives, 77th Cong.,

1st Sess. (1942) ............................................ 16, 18

viii

TABLE OF AUTHORITIES—CONT’D

Page(s)

Providing for the Review of Orders

of Certain Agencies, and Incorporating

into the Judicial Code Certain Statutes

Relating to Three-Judge District Courts,

Hearings before Subcommittee No. 3

and Subcommittee No. 4 of the

Committee on the Judiciary,

House of Representatives, on

H.R. 1468, H.R. 1470, and H.R. 2271,

80th Cong. (1947) .............................. 20, 22-23, 28

Report of the Judicial Conference

of Senior Circuit Judges (1942) ................................ 20

Report of the Judicial Conference

of Senior Circuit Judges (1943) ................................ 21

Report of the Judicial Conference

of Senior Circuit Judges (1944) ................................ 21

Report of the Judicial Conference

of Senior Circuit Judges (1945) ..................... 21, 26-27

Report of the Judicial Conference

of Senior Circuit Judges (1946) ................................ 21

Report of the Judicial Conference

of Senior Circuit Judges (1947) ................................ 22

Report of the Judicial Conference

of Senior Circuit Judges (1950) ................................ 23

INTEREST OF AMICUS CURIAE

Aditya Bamzai is an associate professor at the

University of Virginia School of Law. He teaches and

writes about civil procedure, federal courts, and

administrative law, and he has an interest in the

sound development of these fields.

SUMMARY OF ARGUMENT

Does a federal district court “determine the

validity” of an agency’s regulation under 28 U.S.C.

§ 2342 by interpreting a statute contrary to the

interpretation embraced in the regulation? In this

case, the answer to that question is no, though for

reasons somewhat different from those given by the

petitioners.

The Administrative Orders Review Act —

commonly referred to as the “Hobbs Act” after its

principal sponsor, Representative Samuel Hobbs —

splits the jurisdiction of federal courts to address

certain legal questions in certain federal cases. See

Pub. L. No. 81-901, 64 Stat. 1129 (1950) (codified as

 The parties have consented in writing to the filing of this brief,

and their letters of consent have been filed with the Clerk. No

party’s counsel authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

its preparation or submission. The University of Virginia School

of Law provides financial support for activities related to faculty

members’ research and scholarship, which helped defray the

costs of preparing this brief. (The School is not a signatory to the

brief, and the views expressed here are those of the amicus

curiae.) Otherwise, no person or entity other than the amicus

curiae has made a monetary contribution intended to fund the

preparation or submission of this brief.

2

amended at 28 U.S.C. §§ 2341-2351).

It vests

“exclusive jurisdiction” in the courts of appeals to

perform a set of specified actions, with review

obtainable within a 60-day time period and with

regard to certain orders and regulations. But the Act

leaves district courts to take any other actions —

specifically, any actions not specified in the Hobbs

Act’s text — in the ordinary course of the district

court’s functions.

By splitting federal court

jurisdiction in this manner, the Hobbs Act raises

questions of constitutional structure and statutory

meaning.

First, as to constitutional structure: This Court

addressed the constitutionality of such a “jurisdictionsplitting” provision in Yakus v. United States, 321

U.S. 414 (1944), where it held that the “exclusive

jurisdiction” provisions of the Emergency Price

Control Act of 1942 complied with due process and

Article III. That statute created the Emergency Court

of Appeals, a temporary Article III court vested with

the “exclusive jurisdiction” to “determine the validity

of any regulation or order” promulgated by the Office

of Price Administration under certain statutory

authorities. The Yakus Court held that this provision

precluded a criminal defendant from raising the

invalidity of a regulation as a defense in his criminal

trial. In the Court’s view, it was constitutional for

Congress to “deprive” criminal defendants “of

opportunity to attack” a regulation “in a prosecution

for its violation.” 321 U.S. at 431.

Yakus is a controversial precedent that has been

criticized by Justices of this Court and by scholars.

Indeed, the Court has gone so far as to suggest that

aspects of Yakus should be cabined to the wartime

3

context. But this Court can decide this case based on

a faithful construction of the Hobbs Act. If this Court,

however, were to construe the Hobbs Act’s

jurisdictional provisions too broadly, it would raise a

similar set of questions under Article III and the Due

Process Clause as the Court confronted in Yakus —

and it would require this Court to revisit that case’s

holding in the peacetime context.

Second, as to statutory meaning: The precise

boundary between matters reviewable only directly

and those reviewable in collateral proceedings is

specified by the Hobbs Act’s statutory terms. The

courts of appeals have “exclusive jurisdiction” to

“enjoin, set aside, suspend (in whole or in part), or [ ]

determine the validity” of certain specified orders,

28 U.S.C.

§ 2342,

including

certain

orders

promulgated by the Federal Communications

Commission (“FCC”), § 2342(a). To the extent that a

statute other than the Hobbs Act vests courts with

jurisdiction, a district court is free — indeed, it is

obligated — to adjudicate a case using generally

applicable principles, unless the district court takes

one of the four actions identified in the Hobbs Act’s

text.

When a district court merely disagrees with an

interpretation expressed in an agency’s regulation, it

does not take any of the four actions specified by the

Hobbs Act. Congress borrowed the terms used in the

Hobbs Act — “enjoin,” “set aside,” “suspend,” and

“determine the validity” — from preexisting statutory

schemes governing judicial review of agency action.

The term “enjoin” is familiar from the law of equitable

remedies. At the time of the Hobbs Act’s adoption in

1950, the terms “set aside” and “suspend” were also

4

familiar from special statutory provisions governing

judicial review of agency action, such as the Urgent

Deficiencies Act of 1913.

That leaves the statutory term “determine the

validity of.” Here, again, the key precedent is Yakus.

As amicus explains below, the most natural inference

is that, when Congress enacted the Hobbs Act in 1950,

it borrowed the statutory language “determine the

validity of” from the Emergency Price Control Act of

1942, which the Court construed in Yakus in 1944.

Like the Hobbs Act, the Emergency Price Control Act

split the jurisdiction of the federal courts, using

similar terms to draw the line between the

jurisdiction of the Emergency Court of Appeals and

that of federal district courts. The most natural way

to read “determine the validity of” in the Hobbs Act,

thus, is to interpret those terms to carry the same

meaning given to them in Yakus, as well as the same

limitations that would have been in place when

Congress enacted the Hobbs Act in 1950. Yakus held

that a district court “determined the validity of” a

regulation when the crime charged was a violation of

the regulation itself. The validity of the regulation

was necessarily an element of the crime. Where the

dispute is (as here) over statutory meaning, the logic

of Yakus does not apply.

Put differently, a court “determines the validity

of” a regulation if, and only if, a violation of the

regulation is necessarily a part of the elements of the

crime or civil cause of action at issue in the case. The

text of the Hobbs Act, the canon of constitutional

avoidance, and the interpretive rules in place at the

time of the Hobbs Act’s enactment all point in the

direction of allowing district courts to interpret

5

statutes,

notwithstanding

a

prior

agency

interpretation, where the regulation is merely

interpretive.

For these reasons, as well as those given below,

amicus respectfully submits that the Court should

reverse the judgment of the court of appeals.

BACKGROUND

This case is about the meaning of a set of terms

“with a legal lineage stretching back” to early

Twentieth Century statutes authorizing judicial

review of administrative action. Hall v. Hall, 138

S. Ct. 1118, 1125 (2018). Accordingly, before turning

to an analysis of the Hobbs Act’s provisions, it is

fruitful to describe the constitutional backdrop

against which it was enacted, as well as the sequence

of statutes that culminated in the adoption of the Act’s

terms.

A. Constitutional framework

The Constitution’s provisions indicate that

certain kinds of disputes will occur in regularized

processes before courts established under Article III.

Article III vests the “judicial power of the United

States . . . in one Supreme Court, and in such inferior

courts as the Congress may from time to time ordain

and establish.” U.S. Const. art. III, § 1. In addition,

the Fifth Amendment provides that no person shall be

“deprived of life, liberty, or property without due

process of law.” U.S. Const. amend. V. But precisely

which disputes and under what circumstances these

regularized processes must occur has been, and

continues to be, a subject of dispute. For at the same

time that it vests the “judicial power” in Article III

6

courts, the Constitution authorizes Congress to limit

the jurisdiction of federal courts. See Bank Markazi

v. Peterson, 136 S. Ct. 1310, 1322 (2016); United States

v. Klein, 80 U.S. (13 Wall.) 128 (1872).

As a corollary to Congress’s authority to limit the

jurisdiction of federal courts, this Court has held that,

at least under some circumstances, Congress may

choose to vest a court with review of certain cases

while barring it from reviewing certain questions that

arise in the case — giving “exclusive jurisdiction” to

review those questions to other courts. The canonical

precedent addressing this form of “jurisdictionsplitting” is Yakus. See Richard H. Fallon, Jr. et al.,

Hart and Wechsler’s The Federal Courts and the

Federal System 341 (7th ed. 2015) (citing Yakus to

address “the scope of congressional power to confer

jurisdiction on a court while limiting its authority to

consider particular issues that are relevant to the

controversy”).

Decided in 1944 near the height of the Nation’s

involvement in World War II — indeed, the Normandy

landings occurred just a few months after the Court’s

decision — Yakus concerned a wartime measure

known as the Emergency Price Control Act of 1942

(hereinafter, “EPCA”), 56 Stat. 23, 50 U.S.C. App.

Supp. II, § 901 et seq., as amended by the Inflation

Control Act of October 2, 1942, 56 Stat. 765, 50 U.S.C.

App. Supp. II, § 961 et seq. In an effort to forestall

wartime inflation, the EPCA created an Office of Price

Administration (“OPA”) and authorized its head, the

Price Administrator, to set maximum prices for

commodities and rents throughout the U.S. economy.

See Yakus, 321 U.S. at 419-20; EPCA §§ 1(a), 2, 201(a),

56 Stat. at 23-24, 29 (describing the EPCA as “in the

7

interest of the national defense and security and

necessary to the effective prosecution of the present

war”).

The EPCA created “exclusive jurisdiction” to

review the lawfulness of the OPA’s orders in the

Emergency Court of Appeals, a tribunal staffed by

Article III judges temporarily established to handle

appeals from the Price Administrator. EPCA § 204(c),

56 Stat. at 32. Specifically, after the promulgation of

the relevant regulation, order, or price schedule, a

party generally had sixty days to file a protest with

the Administrator to test the validity of a maximum

price regulation. § 203(a), 56 Stat. at 31 (providing

that “any person subject to” a regulation or order may,

within 60 days after its issuance, “file a protest

specifically setting forth objections” with the

Administrator); see id. (providing that a later protest

may be filed on grounds arising after the expiration of

the original 60 days). If unsuccessful, any “person

who [was] aggrieved” by the Price Administrator’s

actions could seek review within 30 days from the

Emergency Court of Appeals. §§ 204(a)-(c), 56 Stat. at

31-32. Section 204(d) of the Act then gave the

Emergency Court of Appeals (and the Supreme Court,

on review of the Emergency Court’s judgments)

“exclusive jurisdiction to determine the validity of any

regulation or order” and barred other courts from

“consider[ing] the validity of any such regulation,

order, or price schedule.” § 204(d), 56 Stat. at 33.

At the same time, the EPCA gave jurisdiction to

district courts to adjudicate civil enforcement actions

by the Price Administrator, private lawsuits brought

under the Act, and (most controversially) criminal

prosecutions for willful violations of the Act.

8

Specifically, the Act pronounced that “[i]t shall be

unlawful . . . for any person to sell or deliver any

commodity . . . in violation of any regulation or order”

promulgated by the Price Administrator. EPCA

§ 4(a), 56 Stat. at 28. The Act then authorized the

Price Administrator to seek relief in district courts for

such violations. § 205, 56 Stat. at 33; id. § 205(b)

(providing that “[a]ny person who willfully violates

any provision of section 4 of this Act” has committed a

crime).

Yakus arose in the criminal context, after the

federal Government charged Yakus and his colleagues

with selling wholesale cuts of beef at prices above the

maximum prices set by sections 1364.451 to 1364.455

of Revised Maximum Price Regulation No. 169, 7 Fed.

Reg. 10381 et seq. A jury convicted him and his

codefendants, and the First Circuit affirmed. See 137

F.2d 850. At the time of his conviction (and of the

Supreme Court’s review of it), Yakus had not sought

judicial review of the regulation under sections 203

and 204 of the Act. See 321 U.S. at 418. Indeed, the

federal government indicted Yakus after the

expiration of the period for filing protests, while at the

same time arguing that the defendants could not

challenge the validity of the order in the district court

proceedings — but rather had to use the “exclusive

jurisdiction” provisions in a challenge in the

Emergency Court of Appeals.

In Yakus, this Court held that Congress could,

consistent with Article III and due process, “deprive”

criminal defendants “of opportunity to attack” a

regulation “in a prosecution for its violation,” 321 U.S.

at 431, by providing “a sufficiently adequate

[alternative] means of determining the validity of” the

9

regulation,” id. at 418. In part, the Court’s holding

appeared to rest on the EPCA’s and the regulation’s

wartime status. The Court observed, for example,

that “it is appropriate to take into account the

purposes of the Act and the circumstances attending

its enactment and application as a war-time

emergency measure.” Id. at 431.

In part, the Court’s holding appeared to rest on

the broader notion that, even in times of peace,

Congress had the “constitutional power . . . to create

inferior federal courts and prescribe their

jurisdiction.” Id. at 433. Under this authority, the

Court suggested that Congress generally could

“foreclose any further or other consideration of the

validity of a regulation as a defense to a prosecution

for its violation.” Id. at 443. According to the Court,

Congress could “mak[e] criminal the violation of an

administrative regulation, by one who has failed to

avail himself of an adequate separate procedure for

the adjudication of its validity.” Id. at 444. As the

Court put it, the Constitution does not “preclude[] the

practice, in many ways desirable, of splitting the trial

for violations of an administrative regulation by

committing the determination of the issue of its

validity to the agency which created it, and the issue

of violation to a court which is given jurisdiction to

punish violations.” Id.; see also id. at 446 (describing

the procedure as one in “which violation of a price

regulation is made penal”); id. at 447 (noting that the

“indictment charged a violation of the regulation”).

In holding that the Act complied with Article III

and due process, the Court rejected a series of

contentions made by Yakus and his codefendants. For

example, they argued that the regulation was invalid

10

because it would compel them to sell beef below the

price that would allow them to make a profit. See id.

at 431. They also argued that the 60-day period

afforded by the Act to challenge the order gave them

inadequate time to file. See id. at 433-34. The Court

responded that the period was not “unreasonably

short in view of the urgency and exigencies of wartime

price regulation.” Id. at 435; see id. at 441-42. The

EPCA procedure, the Court concluded, “afford[ed] to

those affected a reasonable opportunity to be heard

and present evidence.” Id. The end result was that,

absent a “contention that the present regulation is

void on its face,” Yakus and his codefendants were

precluded from challenging its validity in a criminal

proceeding against them. Id. at 447; see also Bowles

v. Willingham, 321 U.S. 503 (1944) (holding, in a case

decided the same day as Yakus, that a landlord could

not ask a district court to “determine the validity” of a

price regulation in a civil action brought by the Price

Administrator).

The Court’s decision in Yakus was controversial.

See, e.g., 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). It

prompted two separate dissents. Justice Roberts

dissented on the ground that the statute

unconstitutionally delegated legislative power to the

Administrator. See 321 U.S. at 448. Justice Rutledge,

joined by Justice Murphy, argued that Congress

lacked the power to confer on federal courts

jurisdiction over criminal suits “and at the same time

deny them ‘jurisdiction and power to consider the

validity’ of the regulations for which enforcement is

sought.” Id. at 467. “It is one thing,” Rutledge

reasoned, “for Congress to withhold jurisdiction” and

11

“entirely another to confer it and direct that it be

exercised

in

a

manner

inconsistent

with

constitutional requirements.” Id. at 468. “The

problem,” as Rutledge put it, “is not solely one of

individual right or due process of law,” but “equally

one of the separation and independence of the powers

of government and of the constitutional integrity of

the judicial process.” Id.

Moreover, in the immediate aftermath of Yakus,

Congress enacted a law to lessen some of the

harshness of the EPCA’s statutory review mechanism.

In the Stabilization Extension Act, 58 Stat. 632

(1944), Congress removed the time period for filing a

protest with the Price Administrator and directed a

stay of enforcement suits in pending action on a

protest already filed or review of its denial. In the

case of a “reasonable and substantial excuse for the

defendant’s failure” to file a protest, a stay similarly

was directed to allow a defendant to “file in the

Emergency Court of Appeals a complaint against the

[Price] Administrator.” Id. at 639.

Finally, this Court’s later cases cabined some of

Yakus’ jurisprudential ramifications.

In United

States v. Mendoza-Lopez, 481 U.S. 828 (1987), this

Court distinguished Yakus by arguing in part that

the case was limited to the wartime context. Id. at

839 n.15. The Court thereby held that an enforcement

court could not predicate a criminal violation on a

previous administration determination without a

meaningful opportunity for the criminal defendant to

seek judicial review of the administrative ruling. See

id. Likewise, in Adamo Wrecking Co. v. United States,

434 U.S. 275 (1978), Justice Powell wrote separately

to express his views that the EPCA “can be viewed as

12

a valid exercise of the war powers of Congress,”

thereby rendering Yakus “at least arguably

distinguishable” in civil enforcement matters during

peacetime. Id. at 289-91 (Powell, J., concurring); see

also id. at 282-84 & n.2 (majority opinion); Harrison

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

B. Agency review statutes

Against this constitutional backdrop, the Hobbs

Act creates “exclusive jurisdiction” in the courts of

appeals, while at the same time leaving in place

district-court proceedings so long as they do not

engage in any of the four actions specified in the

Hobbs Act’s text. In splitting the jurisdiction of the

federal courts in this manner, the Hobbs Act borrows

terms from preexisting statutes — most notably, the

Urgent Deficiencies Act of 1913 and the EPCA.

Accordingly, it is helpful to walk through the steps

that led to its adoption.

1. Early statutory review mechanisms.

Preexisting statutory review mechanisms for the

agencies that ultimately composed the 1950 version of

the Hobbs Act — the FCC, Federal Maritime

Commission, and Department of Agriculture —

borrowed terminology from an earlier ICC review

statute. In 1913, Congress abolished the short-lived

Commerce Court and transferred review of ICC orders

to three-judge district courts. In a statute known as

the “Urgent Deficiencies Act,” Congress established

the “venue of any suit [ ] brought to enforce, suspend,

or set aside, in whole or in part, any order of the

[ICC].” Act of Oct. 22, 1913, ch. 32, 38 Stat. 208, 219

13

(1913); id. at 220 (establishing that three-judge

district courts were authorized to issue “interlocutory

injunction[s] suspending

or

restraining the

enforcement, operation, or execution of, or setting

aside, in whole or in part, of any [ICC] order”). The

terminology used in the Urgent Deficiencies Act was

a variation on the language used in earlier statutes

establishing judicial review of ICC orders. See Act of

June 29, 1906 (commonly known as “the Hepburn

Act”), ch. 3591, § 5, 34 Stat. 584, 592 (conferring

jurisdiction on the circuit courts to “enjoin, set aside,

annul, or suspend any order or requirement of the

[ICC]”); Act of June 18, 1910 (commonly known as the

“Mann-Elkins Act”), ch. 309, § 1, 36 Stat. 539, 539

(conferring on the newly created Commerce Court

“the jurisdiction now possessed by the circuit courts

. . . over all cases . . . brought to enjoin, set aside,

annul, or suspend . . . any order of the [ICC]”); see, e.g.,

United States v. Los Angeles & S.L.R. Co., 273 U.S.

299, 308-09 (1927) (tracing the genesis of the review

provisions contained in the Urgent Deficiencies Act).

These terms — among them, “enjoin,” “set aside,”

and “suspend” — came to embody review through a

bill in equity, which formed the basis of much early

judicial control of agency action. Cf. Los Angeles &

S.L.R. Co., 273 U.S. at 314-15 (noting that the Court

need not determine “[w]hether the remedy conferred

by the Urgent Deficiencies Act is in all cases the

exclusive equitable remedy”); see Louis L. Jaffe,

Judicial Control of Administrative Action 157 (1965)

(characterizing the Urgent Deficiencies Act as “[o]ne

of the earliest of review statutes”).

Thus,

when

Congress

enacted

the

Communications Act of 1934 (which, among other

14

things,

created

the

Federal

Commissions

Commission), it expressly provided that the

“provisions of the [Urgent Deficiencies Act], relating

to the enforcing or setting aside of the orders of the

[ICC], are hereby made applicable to suits to enforce,

enjoin, set aside, annul, or suspend any order of the

Commission under this Act,” with specified

exceptions. § 402(a), 48 Stat. 1064, 1093 (1934).

Other statutes that became relevant to the Hobbs

Act also either incorporated the Urgent Deficiencies

Act expressly or used similar terminology. For

example, the Shipping Act of 1916 provided that the

venue for “suits brought to enforce, suspend, or set

aside, in whole or in part, any order of the board shall

. . . be the same as in similar suits in regard to orders

of the [ICC].” § 31, 39 Stat. 728 (1916). The Packers

and Stockyards Act of 1921 authorized an “appeal[] to

the circuit court of appeals . . . by filing . . . a written

petition praying that the Secretary’s order be set aside

or modified” and provided that the “court may affirm,

modify, or set aside the order of the Secretary.”

§§ 204(a), (e), 42 Stat. 159, 162 (1921); see also id.

§ 204(h) (“The circuit court of appeals shall have

exclusive jurisdiction to review, and to affirm, set

aside, or modify, such orders . . .”). And the Perishable

Agricultural Commodities Act of 1930 provided that

an order could be “suspended, modified, or set aside

by a court of competent jurisdiction” and that “all laws

relating to the suspending or restraining of the

enforcement, operation, or execution, or the setting

aside in whole or in part, of the orders of the [ICC] are

made applicable to orders of the Secretary under this

Act.” §§ 10-11, 46 Stat. 531, 535 (1930).

15

2. Emergency Price Control Act.

Congress introduced the term “determine the

validity of” into U.S. law in a statutory review

provision accompanying the EPCA.

To amicus’

knowledge, no statutory review provision for

administrative agency action used this language

before the EPCA’s enactment in 1942 (and, indeed,

Congress had used the term only once before in any

public law). See Act to Establish a Court of Private

Land Claims, ch. 539, § 8, 26 Stat. 854, 857 (1891)

(authorizing court to “determine the validity” of title).

Of relevance, section 204(d) of the Act gave the

Emergency Court of Appeals (and the Supreme Court,

on review of the Emergency Court’s judgments):

exclusive jurisdiction to determine the

validity of any regulation or order . . .

Except as provided in this section, no

court, Federal, State, or Territorial, shall

have jurisdiction or power to consider the

validity of any such regulation, order, or

price schedule, or to stay, restrain,

enjoin, or set aside, in whole or in part,

any provision of this Act authorizing the

issuance of such regulations or orders, or

making effective any such price

schedule, or any provision of any such

regulation, order, or price schedule, or to

restrain or enjoin the enforcement of any

such provision.

EPCA § 204(d), 56 Stat. at 33. At the time that

EPCA was introduced in Congress, members of the

Executive Branch drafted an explanation of its

16

provisions.

With respect to the “exclusive

jurisdiction” provision, they said the following:

The exclusive jurisdiction of the

emergency court of appeals extends only

to the review of price or rent ceiling

regulations or orders and the suspension

or revocation of licenses. Because of the

opportunity provided for immediate

review in the emergency court of such

regulations or orders it is proper that

their validity should not be questioned in

any other court or in any collateral

proceeding. Of course, the question

whether there has been a violation of a

ceiling regulation is subject to judicial

determination in criminal or civil

proceedings to enforce the statute,

unless it has already been determined in

proceedings for suspension or revocation

of a license. Other regulations under the

proposed statute are subject to review in

the ordinary courts, in accordance with

the applicable principles of law, in the

same manner and to the same extent as

the rules and regulations of other

Federal administrative agencies.

Price-Control Bill, Hearings before the Committee on

Banking and Currency, House of Representatives,

77th Cong., 1st Sess. 340 (Aug. 8, 1942); see id. at 171

(remarks of Leon Henderson, Administrator, Office of

Price Administration).

The Executive Branch’s

analysis thus distinguished certain regulations that

would be subject to the “exclusive jurisdiction”

provision from regulations reviewable “in the same

17

manner and to the same extent as the rules and

regulations of other Federal administrative agencies.”

In Yakus, the Court addressed the question

whether section 204(d) of the Act “preclude[d]

consideration by a district court of the validity of a

maximum price regulation promulgated by the

Administrator, as a defense to a criminal prosecution

for its violation.” 321 U.S. at 418. The Court observed

that, in Lockerty v. Phillips, 319 U.S. 182 (1943), it

had previously held that the “exclusive jurisdiction”

provisions gave the Emergency Court of Appeals

“exclusive equity jurisdiction to restrain enforcement

of price regulations of the Administrators and that

they withdrew such jurisdiction from all other courts.”

321 U.S. at 429; see Lockerty, 319 U.S. at 187-89

(holding that EPCA’s “exclusive jurisdiction”

provision barred wholesale meat dealers from suing to

restrain the U.S. attorney from prosecuting them for

violations of price regulations). The Court reasoned

that, for the same reasons as in Lockerty, it reached

“the like conclusion as to [district court] power to

consider the validity of a price regulation as a defense

to a criminal prosecution for its violation.” 321 U.S.

at 429. The provisions authorizing the Emergency

Court of Appeals to “determine the validity” of orders

and regulations and stripping other courts of

jurisdiction “to consider the validity” of such orders

and regulations, according to the Court, were “broad

enough in terms to deprive the district court of power

to consider the validity of the Administrator’s

regulation or order as a defense to a criminal

prosecution for its violation.” Id. at 430.

In reaching this conclusion, the Yakus Court

relied on language from the Senate Report

18

accompanying the Emergency Price Control Act and a

change that Congress made to the Act during its

drafting. The Report of the Senate Committee on

Banking and Currency observed that “[t]he courts in

which criminal or civil enforcement proceedings are

brought have jurisdiction, concurrently with the

Emergency Court to determine the constitutional

validity of the statute itself.” Sen. Rep. 931, 77th

Cong., 2d Sess., p. 25. Indeed, Congress had changed

the language of the Act during the drafting process.

As Yakus noted, “the bill as introduced in the House

had provided that the Emergency Court of Appeals

should have exclusive jurisdiction to determine the

validity of the provisions of the Act authorizing price

regulations, as well as of the regulations themselves.”

321 U.S. at 430 (citing H.R. 5479, 77th Cong., 1st

Sess., printed in Hearings before Committee on

Banking and Currency, House of Representatives,

77th Cong., 2d Sess., on H.R. 5479, pp. 4, 7, 8).

According to Yakus, the Report and the alteration

manifested Congress’ intent “to distinguish between

the validity of the statute and that of a regulation, and

to permit consideration only of the former in defense

to a criminal prosecution.” 321 U.S. at 430. Yakus

thus construed the Act to establish that “the validity

of the Administrator’s regulations or orders should

not be subject to attach in criminal prosecutions for

their violation, at least before their invalidity had

been adjudicated by recourse to the protest procedure

prescribed by the statute.” Id. at 430-31.

Shortly after this Court decided Yakus, Congress

enacted the Stabilization Extension Act to mitigate

some of the harshness of the Court’s interpretation of

the EPCA’s review mechanisms. The Stabilization

Extension Act, for example, removed the time period

19

for filing protests with the Price Administrator and

permitted a defendant to file a protest following the

initiation of the Price Administrator’s enforcement

suit, so long as the defendant could establish a

“reasonable and substantial excuse” for failing to

bring an earlier protest. 58 Stat. at 639. In enacting

these legislative fixes, Congress implicitly ratified the

Yakus Court’s construction of the term “determine the

validity of,” while at the same time softening the

ramifications of that construction.

3. The Administrative Procedure Act.

In 1946, Congress enacted the Administrative

Procedure Act (“APA”). 60 Stat. 237 (1946). In the

APA, Congress echoed some of the terminology used

in the Urgent Deficiencies Act by authorizing a

reviewing court to “(A) compel agency action

unlawfully withheld or unreasonably delayed; and

(B) hold unlawful and set aside agency action, findings

and conclusions under specified circumstances.”

§ 10(e), 60 Stat. at 243 (codified at 5 U.S.C. § 706)

(emphasis added).

Congress also provided that

“agency action shall be subject to judicial review in

civil or criminal proceedings for judicial enforcement,”

unless “prior, adequate, and exclusive opportunity for

judicial review is provided by law.” § 10(b), 60 Stat.

at 243 (codified at 5 U.S.C. § 703).

In 1947, Attorney General Tom C. Clark

published a manual — known as the Attorney

General’s Manual on the Administrative Procedure

Act — providing the Department of Justice’s

interpretation of these provisions. With respect to the

latter, the Attorney General’s Manual stated that a

statute may “expressly provide for an exclusive

method of judicial review which precludes challenge

20

of agency action in enforcement proceedings” and

cited section 204(d) of the EPCA. Id. at 99 & n.13.

The Manual acknowledged that “[t]here are many

situations in which the invalidity of agency action

may be set up as a defense in enforcement

proceedings.” Id. at 100.

4. Administrative Orders Review Act.

The Hobbs Act had its genesis in a request from

Chief Justice Harlan Fiske Stone that members of the

Judicial Conference of Senior Circuit Judges study the

procedure for judicial review of orders by the ICC and

other agencies. Providing for the Review of Orders of

Certain Agencies, and Incorporating into the Judicial

Code Certain Statutes Relating to Three-Judge

District Courts, Hearings before Subcommittee No. 3

and Subcommittee No. 4 of the Committee on the

Judiciary, House of Representatives, on H.R. 1468,

H.R. 1470, and H.R. 2271, 80th Cong., at 27 (Mar. 17,

1947) (hereinafter, “Hobbs Act Committee Hearings”)

(remarks of Judge Orie Phillips) (observing that the

proposed legislation “had their beginning in a request

made by the late Chief Justice Stone, that the judicial

conference make a study of the procedure for review

of administrative orders under the Urgent

Deficiencies Act”). Under then-existing law, certain

agency orders were reviewed by a three-judge district

court and appealable as of right to the Supreme Court.

See id.; see also Report of the Judicial Conference of

Senior Circuit Judges 17 (1942) (noting that the

appointed committee consisted of Judges Learned

Hand, Calvert Magruder, Armistead Dobie, and

Walter Lindley and ICC Commissioner Clyde B.

Aitchison).

After being appointed in 1942, the

21

Judicial Conference’s committee initially split into

two, with one part addressing proposed legislation

providing for a uniform method of assembling threejudge district courts and another part addressing

proposed legislation providing for appellate review of

administrative orders. See Report of the Judicial

Conference of Senior Circuit Judges 20-21 (1943)

(noting that, in 1943, Judge Albert Maris presented

the views of the first committee and that the two

committees were then consolidated into a single

committee chaired by Judge Orie Phillips). In 1944,

the committee recommended a draft bill that (in the

words of Chief Justice Stone) gave “to the Circuit

Courts of Appeals . . . exclusive jurisdiction to enjoin

or set aside certain specified orders of the Interstate

Commerce Commission.” Report of the Judicial

Conference of Senior Circuit Judges 12 (1944).

The following year, in 1945, the Judicial

Conference approved the draft bill for the ICC, and

considered another proposed bill to regularize review

of certain orders “of the Secretary of Agriculture

under the Packers and Stockyards Act, 1921, and the

Perishable Agricultural Commodities Act, 1930,

certain orders by the Federal Communications

Commission under the Communications Act of 1934,

and certain orders by the United States Maritime

Commission under the Shipping Act of 1916.” Report

of the Judicial Conference of Senior Circuit Judges 12

(1945). In 1946, the Judicial Conference accepted a

request of the United States Maritime Commission to

amend the ICC proposal to “bring orders of that

agency within the provisions of the bill.” Report of the

Judicial Conference of Senior Circuit Judges 17

(1946). In addition, the Conference recommended

adoption of a bill giving the circuit courts “exclusive

22

jurisdiction to enjoin, set aside, suspend, or determine

the validity of all final orders of the Federal

Communications Commission made under the

Communications Act of 1934, as amended, and certain

orders of the Secretary of Agriculture made under the

Packers and Stockyards Act of 1921, as amended, and

under the Perishable Agricultural Commodities Act of

1930, as amended.” Id. (As is made clear by this

sequence of events, this third recommendation

adopted the “determine the validity of” language that

found its way into the final Act.)

For these reasons, when the Judicial Conference

finally presented legislation to Congress in 1947, it

did so in the form of three separate bills. See Hobbs

Act Committee Hearings 1, 5 (Mar. 7, 1947); see also

Report of the Judicial Conference of Senior Circuit

Judges 19 (1947) (noting that the Conference had

approved “three legislative proposals, one with

respect to review of certain orders of the [ICC] and the

United States Maritime Commission, one with respect

to review of certain orders of the Federal

Communications Commission and the Secretary of

the Agriculture, and one amending certain provisions

of the Urgent Deficiencies Act, and providing a

uniform procedure for constituting three-judge

district courts” and that Judge Phillips “submitted the

report of the Committee concerning the status of these

Conference proposals” to Congress). Specifically, the

review provision for proposed H.R. 1468 gave circuit

courts “exclusive jurisdiction to enjoin, set aside, or

suspend in whole or in part [certain] final orders” of

the ICC and United States Maritime Commission.

Hobbs Act Committee Hearings 21 (Mar. 17, 1947); see

also id. at 22-24. By contrast, the review provision for

proposed H.R. 1470 gave circuit courts “exclusive

23

jurisdiction to enjoin, set aside, suspend (in whole or

in part), or to determine the validity of, all final

orders” of the FCC and the Secretary of Agriculture.

Id. at 24; see also id. at 25-26.

After several years of consideration, Congress

combined the relevant portions of the three bills into

a single statute that became the Hobbs Act —

authorizing review of the Federal Communications

Commission, the Secretary of Agriculture, and the

United States Maritime Commission. See Report of

the Judicial Conference of Senior Circuit Judges 222

(1950). In doing so, Congress used the broader

language contained in the original H.R. 1470, giving

circuit courts “exclusive jurisdiction to enjoin, set

aside, suspend (in whole or in part), or to determine

the validity of, all [listed] final orders.” H.R. 5487,

81st Cong., 1st Sess. (introduced by Rep. Hobbs on

July 5, 1949).

As a result, comparable to the EPCA, the enacted

Hobbs Act granted a “party aggrieved” by an order the

right to petition within 60 days from the order’s entry,

§ 4, 64 Stat. at 1130 (codified at 28 U.S.C. § 2344), and

thereby bring an action “against the United States” in

the “judicial circuit in which the petitioner resides or

has its principal office” or in the D.C. Circuit, § 3, 64

Stat. at 1130 (codified at 28 U.S.C. § 2343). The courts

of appeals were given “exclusive jurisdiction to enjoin,

set aside, suspend (in whole or in part), or to

determine the validity of” certain final orders, § 2, 64

Stat. at 1129, including those involving the FCC in

this case, see Pet. Br. 7-13; see also 28 U.S.C. § 2349(a)

(authorizing the court of appeals to enter a “judgment

determining the validity of, and enjoining, setting

24

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

the agency”).

ARGUMENT

“[I]f a word is obviously transplanted

from another legal source, whether the common law

or other legislation, it brings the old soil with it.” Felix

Frankfurter, Some Reflections on the Reading of

Statutes, 47 Colum. L. Rev. 527, 537 (1947). Justice

Frankfurter’s maxim all but decides this case. Here,

the most plausible interpretation of the Hobbs Act is

that Congress in 1950 incorporated the similar

language used in the EPCA in 1942. As a result, the

term “determine the validity of,” as used in the Hobbs

Act, carries the same meaning given to it under the

EPCA — as well as the same limitations. That

statutory term prohibits a district court from

“determining the validity of” a regulation where, as in

Yakus, a violation of the regulation is made an

element of a crime or civil action. In such a case, a

district court cannot reject any interpretation

contained in the regulation without declaring the

regulation invalid, because the statute itself is

predicated on violating the regulation. But the Hobbs

Act does not prohibit a district court from interpreting

statutory text in other circumstances.

A. The Hobbs Act’s use of the term

“determine the validity of” incorporated

preexisting statutory usage.

For several reasons, the most plausible inference

is that the Hobbs Act’s use of the term “determine the

validity of” was intended to mimic the term’s use in

the EPCA.

25

For one thing, the EPCA was the only statutory

review provision that had, to that date, used this

terminology. That fact, in itself, is highly salient. In

general, statutory provisions ought to be interpreted

in a consistent fashion. See Caleb Nelson, Statutory

Interpretation 486-525 (2011) (discussing the notion

that “statutes address[ing] the same subject” might be

read “in pari materia” such that “courts construing

one statute should seek guidance from other related

statutes”); see Branch v. Smith, 538 U.S. 254, 281

(2003) (plurality opinion of Scalia, J.); cf. Erlenbaugh

v. United States, 409 U.S. 239, 243-44 (1972)

(indicating that the in pari materia canon, meaning

the presumption that “a legislative body uses a

particular word with a consistent meaning in a given

context,” is at its strongest “when the statutes were

enacted by the same legislative body at the same

time”). But where the statutory language is unusual

for the context, there is every reason to believe the

later-enacted statute was copied from (and intended

to have the same meaning as) the earlier statute.

For another, cases involving the Emergency Price

Control Act (and the Office of Price Administration’s

enforcement of it) could not have been more squarely

in the public eye in the years preceding Congress’s

consideration and enactment of the Hobbs Act. For

example, in 1944, 38,499 civil cases were commenced

in federal district courts. See Report of the Judicial

Conference of Senior Circuit Judges 6 (1945). That

number increased to 60,965 in 1945 and 67,835 in

1946. See id. at 6. As the Judicial Conference

observed, “[t]he phenomenal increase in the number

of [civil] cases filed [in district courts] during the past

two years is accounted for by the 28,653 civil cases

commenced by the Office of Price Administration in

26

1945 and the 31,252 cases in 1946.” Id. As a result,

in 1946, “almost half of [all civil] cases were brought

by the Office of Price Administration for enforcement

of price control and rationing regulations.” Id. at 5.

For yet another reason, there is evidence in the

legislative record suggesting that informed observers

would have understood the Hobbs Act’s use of the

language “determine the validity of” to be the same as

the Emergency Price Control Act’s use. An extensive

objection at the 1947 subcommittee hearings indicates

how at least one private attorney understood the

Hobbs Act’s language:

I think Your Honors will recall in your

deliberations on the Administrative

Procedure Act that a strong contention

had been made that it was inherently

wrong in our country that a man could be

indicted criminally for the violation of an

administrative order and then not be

permitted to defend himself on the

ground that the order itself was invalid

because beyond the authority of the

agency to make it.

That was an evil that had been

developing in our country, the tendency

being to say, “Well, you at least

committed a crime because you violated

the order. Maybe the order was no good,

but you violated it.”

That was not quite a fair presentation,

because so many of these orders, in the

many of their wording, leave a layman in

27

a great deal of doubt as to just what his

rights and duties are.

So, Your Honors, then, in the enactment

of the Administrative Procedure Act,

section 10, paragraph (b), provided, and

we were all delighted with it, that the

validity of an administrative order may

be challenged by way of defense in a

criminal proceeding brought to enforce

such an order, under these conditions,

being, namely, that there has not

previously existed an adequate exclusive

remedy of a different kind.

...

Now, in this legislation before Your

Honors, I do not suppose with any deepdyed plot, nonetheless I have observed

that it is expressly provided that the

system of review here set up shall be

exclusive.

Now, that is not mere accident.

Were that concept to be continued in this

legislation, should Your Honors pass it,

it is the death knell again, before the ink

is hardly dry, to the Administrative

Procedure Act. It is the death knell to

the opportunity of a defendant to say,

“Well, if I did violate the order

innocently, then the order itself was not

a valid order.” You are taking from him

that right of defense in a criminal action,

and I do not believe Your Honors would

28

wish to do so so soon after the

Administrative Procedure Act.

Hobbs Act Committee Hearings 45-46 (Mar. 17, 1947)

(remarks of Mr. Charles Cotterill). No action appears

to have been taken in light of these remarks, though

there are scattered comments in the record suggesting

concern about the proposed legislation’s consistency

with the Administrative Procedure Act. See id. at 113

(Mar. 10, 1949) (suggesting that Rep. Francis Walter,

one of the APA’s proponents, expressed such a

concern); id. at 149 (Apr. 1, 1949). To be sure, amicus

believes that the aforementioned remarks were

merely those of a private attorney and by no means

ought to be privileged in the search for the meaning of

the Hobbs Act. But they cast light on what an

informed observer might have thought the terms of

the Act meant, in context, when Congress enacted the

statute in 1950.

Finally, it is worth noting that the EPCA and the

Hobbs Act are different in certain respects. For one

thing, as the Yakus Court noted, the EPCA was a

wartime measure; the Hobbs Act is not. For another,

EPCA had a “belt and suspenders” aspect that the

Hobbs Act lacks. The EPCA gave the Emergency

Court of Appeals “exclusive jurisdiction to determine

the validity of any regulation or order,” while denying

to other courts “jurisdiction or power to consider the

validity of any such regulation, order, or price

schedule.” EPCA § 204(d), 56 Stat. at 33. The Hobbs

Act lacks this “consider the validity” language.

Nevertheless, on balance and against the full

backdrop, the most plausible inference is that the

drafters of the Hobbs Act borrowed the “determine the

validity of” language from the Emergency Price

29

Control Act. While the wartime nature of the EPCA

is surely significant when it comes to the statute’s

constitutionality, it is unclear why it should have any

significance on the question of the meaning of a

statute. Moreover, while it is true that the Hobbs Act

lacks the “belt and suspenders” quality of the EPCA,

it is unclear why that should affect the proper

interpretation of the terms that the Hobbs Act does

contain: “Exclusive jurisdiction” to “determine the

validity.” At the end of the day, the most plausible

inference is that informed members of the public

would have understood the Hobbs Act’s language to

have essentially the same import as the same

language from the Emergency Price Control Act —

and to incorporate the holding of Yakus.

B. A court does not “determine the validity

of” a regulation by disagreeing with the

interpretation

embraced

in

the

regulation.

Just as the Hobbs Act incorporates the

preexisting gloss on the terms “determine the

validity,” so too does it incorporate the preexisting

limits imposed on those terms. In this instance, the

critical limit is the distinction between a regulation

that is made the predicate for a statutory violation,

criminal or civil, and a regulation that merely

interprets statutory text. In the former case, Yakus

holds that a defense arguing that the regulation is

invalid would ask the district court to “determine the

validity of” the regulation. In the latter case, at the

time of the Hobbs Act’s enactment, the natural

understanding would have been that mere judicial

disagreement with an interpretation embraced by a

30

regulation does not call that regulation’s “validity”

into doubt.

First, the text of the Hobbs Act supports this

interpretation.

It grants courts of appeals the

“exclusive jurisdiction” to “determine the validity of”

agency regulations, thereby precluding district courts

from doing the same. 28 U.S.C. § 2342. The text,

however, does not suggest that district courts are

precluded from taking actions with the “effect” of

questioning the validity of an interpretation embraced

by a regulation.

The narrower language —

“determine the validity of” — naturally encompasses

fact patterns like the one at issue in Yakus, while

leaving to district courts the ordinary judicial task of

statutory interpretation.

Second, precedent supports this interpretation.

Take Yakus, for example. The Court made clear that

its holding was tied to the statutory scheme

established by the EPCA, which “ma[de] criminal the

violation of an administrative regulation, by one who

has failed to avail himself” of separate procedures for

appeal. 321 U.S. at 444. The Court repeatedly

stressed this aspect of the EPCA, noting that the

“indictment charged a violation of the regulation,” id.

at 447, that the district court was tasked with finding

a “violation” of the regulation, id. at 444, and that the

procedure was one in “which violation of a price

regulation is made penal,” id. at 446.

This Court’s cases interpreting the Hobbs Act are

to the same effect. Port of Boston Marine Terminal

Association v. Rederiaktiebolaget Transatlantic, 400

U.S. 62 (1970), addressed a lawsuit for damages under

a port agreement approved by the Federal Maritime

Commission, in which a defendant sought to assert a

31

defense that the agreement was invalid. See id. at 6465 (noting that the Terminal Association brought a

state-court action for damages and declaratory relief

against the Boston Shipping Association, which

defended on the ground that the revised tariff was

invalid). Like Yakus, Port of Boston thus addressed a

circumstance where the validity of the very

“regulation” (in that case, a port agreement) was

necessary to establish the elements of the commonlaw claim at issue in the lawsuit. See 420 F.3d 419

(1st Cir. 1970) (recounting facts). Like Yakus, Port of

Boston thus illustrates that the Hobbs Act can have

preclusive effect outside of the context of actions for

injunctive or declaratory relief against the

government.

See 400 U.S. at 69.

And most

importantly, like Yakus, Port of Boston illustrates the

limit to the application of the Hobbs Act: The lawsuit

was about the validity of a tariff that formed the basis

for recovery, not the appropriate interpretation of a

statute.

Other cases involve a party seeking equitable or

injunctive relief against the government, which brings

it within the Hobbs Act’s prohibitions on obtaining

district-court relief to “enjoin,” “set aside,” or

“suspend” a regulation.

In FCC v. ITT World

Communications, Inc., 466 U.S. 463 (1984), a

company filed suit in district court “to enjoin action

that is the outcome of [an FCC] order,” id. at 468, thus

naturally triggering application of the Hobbs Act’s

term.

Cf. ICC v. Brotherhood of Locomotive

Engineers, 482 U.S. 270 (1987); Florida Power & Light

Co. v. Lorion, 470 U.S. 729 (1985); Consolo v. Federal

Maritime Commission, 383 U.S. 607 (1965).

32

Third, interpreting the “determine the validity

of” language in the Hobbs Act more broadly would

pose constitutional difficulties. See, e.g., MendozaLopez, 481 at 839 n.15; Adamo Wrecking, 434 U.S. at

289-91 (Powell, J., concurring). As the D.C. Circuit

has put it, “[t]he nagging presence of a substantial due

process question” with respect to preclusive review

provisions “indicates, then, at the very least, the

propriety of a narrow interpretation of” the statute.

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

Fourth, broader jurisprudential principles

regarding the relationship between statutory

meaning and agency regulatory authority support this

construction of the Hobbs Act. Any argument that

judicial

disagreement

with

a

regulation’s

interpretation calls into doubt the regulation’s

“validity” necessarily depends on the notion that a

court must adopt the agency’s regulatory

interpretation under certain circumstances. Put

differently, a necessary premise to the Fourth

Circuit’s decision below is that a court addresses the

“validity” of an agency regulation any time that it

interprets the relevant statute. That premise itself

rests on a further premise that the interpretations set

forth in agency rules must be accorded weight by

reviewing courts under appropriate circumstances.

See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837, 842-43 (1984). (Were the Court not

to give weight to agency interpretations under

Chevron, nobody would argue that a district court’s

construction of a statute “determine[d] the validity of”

an agency regulation saying the contrary.)

There is ample reason to believe, however, that

Chevron departs from the prevailing views on

33

statutory interpretation at the time of the APA’s, and

hence the Hobbs Act’s, adoption. See, e.g., Fast v.

DiSalle, 193 F.2d 181, 184 (Emergency Ct. App. 1951)

(stating that “complainants are quite wrong in

supposing that . . . the enforcement court would be

bound to assume the correctness and validity of the

enforcement director’s interpretation of the

regulation,” but rather “[t]he enforcement court would

have to make its own independent determination of a

question of law, as to whether . . . the regulation,

properly interpreted, authorized the price increases in

question”); see generally Aditya Bamzai, The Origins

of Judicial Deference to Executive Interpretation, 126

Yale L.J. 908 (2017).

A holding contrary to the one set forth above,

thus, has the potential to import the entire Chevron

framework into the jurisdictional analysis under the

Hobbs Act. That is because, on the theory that would

underlie such a holding, a reviewing court could be

viewed as calling into question the regulation’s

“validity” only if the ordinarily applicable principles

required the court to defer to the agency’s regulatory

interpretation.

Jurisdictional issues should be clear. Hertz Corp

v. Friend, 559 U.S. 77, 96 (2010). Whatever the merits

of the Chevron framework, its application is not clear.

Respectfully, the court should hesitate before making

the Hobbs Act’s jurisdictional rules turn on the

applicability of the Chevron doctrine.

34

CONCLUSION

The judgment below should be reversed.

Respectfully submitted.

ADITYA BAMZAI

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

580 Massie Road

Charlottesville, VA 22903

(434) 243-0698

abamzai@law.virginia.edu

January 2019

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.

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