Amicus Curiae Brief — PDR Network, LLC, et al., Petitioners v. Carlton & Harris Chiropractic, Inc.
Supreme Court briefJan 15, 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,
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.