Amicus Curiae Brief — Howard L. Baldwin, et ux., Petitioners v. United States

Supreme Court briefOct 24, 2019

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No. 19-402

In the

Supreme Court of the United States

HOWARD L. BALDWIN, ET UX.,

Petitioners,

UNITED STATES,

Respondent.

On Petition for Writ of Certiorari to the

U.S. Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE CENTER

FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Claremont Institute’s Center for

Constitutional Jurisprudence

c/o Dale E. Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

(877) 855-3330

caso@chapman.edu

Counsel for Amicus Curiae

QUESTIONS PRESENTED

1. Should the holding of National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), that an agency’s permissible reading of a statute prevails over circuit court

precedent, be overruled?

2. What, if any, deference should a federal

agency’s statutory construction receive when it contradicts a court’s precedent and disregards traditional

tools of statutory interpretation, such as the commonlaw presumption canon?

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

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

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

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

REASONS FOR GRANTING THE WRIT ..................2

This Court Should Grant Review to

Consider Whether the Decision in Brand X

is Contrary to Congress’s Plan of Judicial

Review ..................................................................... 2

A. Interpretation of the Administrative

Procedure Act should begin with the

text of the law. ................................................. 2

B. The courts have a duty under the

Administrative Procedure Act to apply

their independent judgement in

interpreting the law. ...................................... 5

C. Congress did not intend to displace the

judicial role of statutory interpretation. .... 7

II. Failure by Congress to Reject Brand X

Cannot be Interpreted as Congress’

Approval of the Decision. .................................... 8

CONCLUSION .......................................................... 11

iii

TABLE OF AUTHORITIES

Cases

Abbott Laboratories v. Gardner,

387 U. S. 136 (1967).................................................5

Alexander v. Sandoval,

532 U.S. 275 (2001)..................................................3

Azar v. Allina Health Services,

139 S.Ct. 1804 (2019)...............................................4

Barlow v. Collins,

397 U.S. 159 (1970)..................................................4

Block v. Cmty. Nutrition Inst.,

467 U.S. 340 (1984)..................................................4

Chevron, U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1985)..................................................7

Clinton v. City of New York,

524 U.S. 417 (1998).............................................. 1, 8

Department of Transportation v. Association of

American Railroads,

135 S. Ct. 1225 (2015)..............................................1

Epic Systems Corp. v. Lewis,

138 S.Ct. 1612 (2018)...............................................4

F.C.C. v. Pottsville Broad. Co.,

309 U.S. 134 (1940)..................................................5

Girouard v. United States,

328 U.S. 61 (1946)....................................................9

Grove City Coll. v. Bell,

465 U.S. 555 (1984)..................................................4

Gundy v. United States,

139 S.Ct. 2116 (2019)...............................................1

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) .................................6

Halliburton Co. v. Erica P. John Fund, Inc.,

573 U.S. 258 (2014).............................................. 8, 9

I.N.S. v. Chadha,

462 U.S. 919 (1983).............................................. 1, 9

John Kelley Co. v. Comm'r,

326 U.S. 521 (1946)..................................................5

Johnson v. Transportation Agency,

480 U.S. 616 (1987)..................................................9

Kisor v. Wilke,

139 S.Ct. 2400 (2019)..................................... passim

Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

Curran,

456 U.S. 353 (1982)..................................................4

Nat'l Cable & Telecomms. Ass'n v. Brand X Internet

Servs.,

545 U.S. 967 (2005)........................................ passim

Norton v. Warner Co.,

321 U.S. 565 (1944)..................................................5

Patterson v. McLean Credit Union,

491 U.S. 164 (1989).............................................. 8, 9

Pension Benefit Guar. Corp. v. LTV Corp.,

496 U.S. 633 (1990)..................................................9

Perez v. Mortgage Bankers Ass’n,

135 S.Ct. 1199 (2015)...............................................1

Schwegmann Brothers v. Calvert Distillers Corp.,

341 U.S. 384 (1951)..................................................4

Scripps-Howard Radio v. F.C.C.,

316 U.S. 4 (1942)......................................................5

Social Security Board v. Nierotko,

327 U.S. 358 (1946)..................................................5

United States v. Wise,

370 U.S. 405 (1962)..................................................9

Universal Camera Corp. v. NLRB,

340 U. S. 474 (1951).................................................7

Statutes

5 U.S.C. § 706 .................................................... passim

Rules

Sup. Ct. R. 37.2 ............................................................1

Sup. Ct. R. 37.6 ............................................................1

INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is

the public interest law arm of the Claremont Institute, whose stated mission is to restore the principles

of the American founding to their rightful and preeminent authority in our national life, including the role

of the judiciary in interpreting statutes passed by

Congress and enforced by the Executive. See I.N.S. v.

Chadha, 462 U.S. 919, 951 (1983); Clinton v. City of

New York, 524 U.S. 417 (1998). The Center has previously appeared before this Court as amicus curiae in

several cases addressing these issues, including Kisor

v. Wilke, 139 S.Ct. 2400 (2019); Gundy v. United

States, 139 S.Ct. 2116 (2019); Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199 (2015); and Department of

Transportation v. Association of American Railroads,

135 S. Ct. 1225 (2015).

SUMMARY OF ARGUMENT

The Supreme Court should grant the petition for

writ of certiorari so that it can revisit and overturn its

decision in Nat’l Cable & Telecomms. Ass’n v. Brand

X Internet Servs., 545 U.S. 967 (2005). Petitioners

have ably demonstrated how Brand X is contrary to

the constitutional structure of separated powers. This

Court should also grant review to consider whether

Brand X is contrary to the plan of the Administrative

1 Pursuant to this Court’s Rule 37.2, this amicus brief is filed

with the consent of the parties, all of whom were notified more

than 10 days before this filing. Pursuant to Rule 37.6, Amicus

Curiae affirms that no counsel for any party authored this brief,

and no person other than Amicus Curiae, its members, or its

counsel made a monetary contribution to the preparation or submission of this brief.

Procedure Act which vests judicial review of legal

questions in the courts. The Court’s decision in Brand

X abdicates the judiciary’s statutory duty under section 706 of the Administrative Procedure Act of 1946

(5 U.S.C. § 706) to rule on questions of law and to invalidate agency actions that are contrary to statute.

The Brand X decision accomplishes this by forcing

Circuit Courts of Appeals to abandon their own precedents and instead defer to later agency interpretations of the statute. In enacting section 706, Congress

intended that the judiciary continue its role of interpreting statutes and ruling on legal questions.

REASONS FOR GRANTING THE WRIT

This Court Should Grant Review to Consider Whether the Decision in Brand X is

Contrary to Congress’s Plan of Judicial Review

Nothing in the Administrative Procedure Act

demonstrates an intent by Congress to strip the courts

of their power to interpret law. Precisely the opposite.

The Act demonstrates a congressional intent for

courts – not Executive Branch agencies – to make

judgments of law.

A. Interpretation of the Administrative

Procedure Act should begin with the

text of the law.

In Kisor v. Wilkie, this Court concluded that Congress intended the courts to defer to an agency’s interpretation of its own regulations. Kisor, 139 S.Ct. at

2419. Although such an interpretation departs from

the text of the Administrative Procedure Act, the

Court found support for its interpretation of congressional intent in the 1947 Attorney General’s Manual

on the Administrative Procedure Act. The Court

found the Attorney General’s opinion as to congressional intent and the meaning of the statutory text

persuasive. Id. at 2419; see Vermont Yankee Nuclear

Power Corp. v. Natural Resources Defense Council,

Inc., 435 U.S. 519, 546 (1978). This Court should

grant review to clarify when an executive branch

manual can be viewed as evidence of congressional intent and the meaning of a statutory text.

The reliance on the Attorney General’s manual as

evidence of the intent of Congress seems out of place.

As Justice Gorsuch noted, the Attorney General’s

manual reflected the views of the executive branch of

government. Kisor, 139 S.Ct. at 2436 (Gorsuch, J.,

concurring in the judgment). On the specific topic of

judicial review, many members of Congress in fact disagreed with the views of the Attorney General. Id.

Outside of the line of cases under the Chevron

doctrine, the courts have not turned to the executive

branch for guidance on what Congress intended to accomplish with the enactment of a law. Even in those

cases, however, the courts must still determine the

meaning of the statutory text using the traditional

rules of statutory interpretation. SAS Institute, Inc.,

v. Iancu, 138 S.Ct. 1348, 1358 (2018) (“Even under

Chevron, we owe an agency’s interpretation of the law

no deference unless, after ‘employing traditional tools

of statutory construction,’ we find ourselves unable to

discern Congress’s meaning”). Those traditional rules

of interpretation do not include the views of the executive branch of government.

Instead, the courts have looked to Congress to determine what Congress intended. The starting place

for the determination of congressional intent must be

the text of the statute. Alexander v. Sandoval, 532

U.S. 275, 288-89 (2001) (“We therefore begin (and find

that we can end) our search for Congress’s intent with

the text …”).

This Court has noted that its focus must be “on

‘the intent of Congress.’” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377-78

(1982). Looking beyond the text of the statute at issue, this Court has found evidence of congressional intent in the history of related enactments (Grove City

Coll. v. Bell, 465 U.S. 555, 565-66 (1984)) and the statutory scheme (Block v. Cmty. Nutrition Inst., 467 U.S.

340, 349 (1984), Barlow v. Collins, 397 U.S. 159, 16465 (1970)). When the text is ambiguous, the Court has

also looked to the problematic guide of “legislative history.” Kisor, 139 S.Ct. at 2436 (Gorsuch, J., concurring in the judgment). The Court has cautioned, however, that “‘legislative history is not the law.’” Azar v.

Allina Health Services, 139 S.Ct. 1804, 1814 (2019)

(quoting Epic Systems Corp. v. Lewis, 138 S.Ct. 1612,

1631 (2018)). In Epic, the Court commented that

“once [Congress] enacts a statute ‘“[w]e do not inquire

what the legislature meant; we ask only what the statute means.”’” Epic, 138 S.Ct. at 1631 (quoting

Schwegmann Brothers v. Calvert Distillers Corp., 341

U.S. 384,396-97 (1951) (Jackson, J. concurring)). If

the Court has found legislative debates to be an uncertain guide to congressional intent, an executive

branch interpretation of congressional intent should

certainly not be allowed to overrule the statutory text

at issue.

The idea that judicial review was intended to be

something other than that set out in the Administrative Procedure Act is, at best, disputed. If the Act was

merely intended to codify the prior common law practice of judicial review, the case law seems to confirm a

practice of judicial review of legal questions. This

Court in Scripps-Howard Radio v. F.C.C., 316 U.S. 4

(1942), noted that judicial review “is limited to determining whether errors of law have been committed.”

Id. at 10. Similarly, the Court in Social Security

Board v. Nierotko, 327 U.S. 358 (1946), ruled that the

decision as to whether an agency exceeded the limits

of its statutory power was a judicial function. Id. at

369. The decisions of this Court prior to the Administrative Procedure Act seem to vest the power of statutory construction firmly in the judiciary. E.g., John

Kelley Co. v. Comm'r, 326 U.S. 521, 527-29 (1946);

Norton v. Warner Co., 321 U.S. 565, 571 (1944); F.C.C.

v. Pottsville Broad. Co., 309 U.S. 134, 144-45 (1940).

If there was any doubt about the scope of judicial

review, that doubt was resolved with the text of Section 706 of the Administrative Procedure Act.

B. The courts have a duty under the Administrative Procedure Act to apply

their independent judgement in interpreting the law.

In passing the Administrative Procedure Act,

Congress “define[d] the relationship between courts

and agencies.” Kisor, 139 S.Ct. at 2432 (Gorsuch, J.,

concurring in the judgment) (citing Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967)). Section

706 of the Act provides that: “To the extent necessary

to decision and when presented, the reviewing court

shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and determine the meaning or applicability of the terms of an

agency action.” Further, the court must hold unlawful

any agency action “in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right.”

5 U.S.C. § 706 (2)(C).

In interpreting the law and reviewing an agency

action, the Act’s “unqualified command” is that courts

must apply their independent judgement in determining legal questions and determining the legality of an

agency action. See Kisor, 139 S.Ct. at 2432 (Gorsuch,

J., concurring in the judgment); see also Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1151 (10th Cir. 2016)

(Gorsuch, Cir. J., concurring) (stating that through

the APA, “Congress vested the courts with the power

to ‘interpret . . . statutory provisions’ and overturn

agency action inconsistent with those interpretations.

5 U.S.C. § 706.”).

Under section 706, the courts have a duty to independently interpret the law and dispose of any

agency decision or regulation not in accordance with

that interpretation. See, e.g., Kisor, 139 S.Ct. at 2432

(Gorsuch, J. concurring in the judgment) (“The APA

thus requires a reviewing court to resolve for itself any

dispute over the proper interpretation of an agency

regulation.”). When it defers to and applies an

agency’s legal interpretation of the law regardless of

contrary judicial interpretation, “the court is abdicating the duty Congress assigned to it in the APA” to

interpret the law. Id.

The Administrative Procedure Act confers upon

the judiciary the duty of interpreting the law through

its own independent judgement, a duty which is not

fulfilled by ignoring judicial interpretation and deferring to agency interpretations of the law.

C. Congress did not intend to displace the

judicial role of statutory interpretation.

Part of the rational of the Brand X decision is that

Congress, in drafting ambiguous statutes, intends

that federal agencies resolve such ambiguities. See

Brand X, 545 U.S. at 982 (citing Chevron, U.S.A., Inc.

v. NRDC, Inc., 467 U.S. 837 (1985)). This led to the

conclusion in Brand X that federal agencies have the

power to overrule contrary judicial interpretations of

federal statutes. Id. Such a rule ignores the text of

Section 706.

Section 706 provides that “the reviewing court

shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and determine the meaning or applicability of the terms of an

agency action.” 5 U.S.C. § 706. Had Congress wanted

the courts to defer to federal agency interpretations,

it would have said so in Section 706. See Kisor, 139

S.Ct. at 2432 (Gorsuch, J., concurring in the judgment). For instance, the Administrative Procedure

Act dictates specific standards of review in different

circumstances. Id. at 2432 n.48 (citing §706(2)(A) as

requiring “arbitrary and capricious, abuse of discretion” and §706(2)(E) as requiring “substantial evidence”; also citing Universal Camera Corp. v. NLRB,

340 U.S. 474, 482, n.14 (1951) which noted that the

APA’s original judicial review provision required that

courts accord “due weight” to “the experience, technical competence, specialized knowledge, and legislative policy of the agency involved as well as the discretionary authority conferred upon it”). In Section 706,

by contrast, Congress vested the judiciary with the

duty to review questions of law, including the interpretation of statutory provisions. The decision in

Brand X is directly contrary to this congressional intent. This Court should grant review to rule that

nothing in the Administrative Procedure Act empowers administrative agencies to overrule a federal

court’s interpretation of the statutory text.

II.

Failure by Congress to Reject Brand X

Cannot be Interpreted as Congress’ Approval of the Decision.

The decision in Brand X marked a clear departure from the text of Section 706 setting forth the

scope of judicial review. Failure by Congress to reject

Brand X through legislation cannot be interpreted as

Congressional adoption of the decision. Such an interpretation would violate the clear and strict procedures for enacting federal law. Further, such an interpretation is only one of many possible reasons for

Congressional inaction.

Interpreting Congressional inaction as an adoption of judicial doctrine is tantamount to the Court

codifying judicial doctrine as law without necessary

Congressional action. See Halliburton Co. v. Erica P.

John Fund, Inc., 573 U.S. 258, 299 (2014) (Thomas, J.,

dissenting). The decision in Brand X was a clear departure from the text of the statute on judicial review.

Treating congressional inaction as agreement with

this clear departure operates as a back-door amendment of the statute without following the statutory

procedure for enactment of law.

Interpreting congressional failure to act as adoption of a judicial decision altering the meaning of a

statutory text is a violation of the Constitution’s strict

procedures for enacting federal law. See Patterson v.

McLean Credit Union, 491 U.S. 164, 175 n.1 (1989)

(stating that Congress legislates by passing a bill and

“Congressional inaction cannot amend a duly enacted

statute”). The “power to enact statutes may only ‘be

exercised in accord with a single, finely wrought and

exhaustively considered, procedure.’” Clinton v. City

of New York, 524 U.S. 417, 440 (1998) (quoting I.N.S.

v. Chadha, 462 U.S. 919, 951 (1983)). Such procedure

requires that a law be enacted or amended “only

through the passage of a bill which is approved by

both Houses and signed by the President.” Patterson,

491 U.S. at 175, n.1. Adhering to a judicial decision

“based on congressional inaction would invert [this

procedural] requirement by insulating error from correction merely because Congress failed to pass a law

on the subject.” Halliburton Co., 573 U.S. at 299

(2014) (Thomas, J., dissenting).

Further, it is “impossible to assert with any degree of assurance” that Congress’s failure to correct a

decision through legislation means that it approves of

or adopts the merits of the decision. Johnson v. Transportation Agency, 480 U.S. 616, 671-72 (1987) (Scalia,

J., dissenting). This is so because “‘several equally

tenable inferences’ may be drawn” from Congress’s

failure to act on a decision. Pension Benefit Guar.

Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (quoting

United States v. Wise, 370 U.S. 405, 411 (1962)). Congress may fail to act on an incorrect judicial opinion

for many reasons including, but not limited to, inability to agree on correcting legislation, unawareness, indifference, or “political cowardice.” Johnson, 480 U.S.

at 672 (Scalia, J., dissenting). To equate inaction by

Congress as an adoption of that decision is at best

“treacherous” and “speculative.” Girouard v. United

States, 328 U.S. 61, 69 (1946); Halliburton Co., 573

U.S. at 299 (2014) (Thomas, J., dissenting).

Brand X requires deference to agency interpretations of the law regardless of contrary judicial precedent. 545 U.S. at 982. Yet the text of Section 706

vests the power of statutory interpretation in the reviewing court. Nothing in Section 706 even hints at

the idea that an agency has the power to overrule a

United States Circuit Court of Appeals decision interpreting the statute. Congress has not adopted such

an approach – instead it has left the text of Section

706 unchanged. That text still requires that the judiciary determine when a federal agency decision is “in

excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”

This Court should grant review to return the plan

of judicial review that Congress enacted in the Administrative Procedure Act.

CONCLUSION

The decision of the United States Court of Appeals for the Ninth Circuit denying the Baldwins the

right to use the common law mailbox rule to prove

timely mailing of their refund claim is based on the

conceptually flawed holding in Brand X. The petition

for writ of certiorari should be granted so that Brand

X can be revisited and overturned.

October 2019

Respectfully submitted,