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

No. 19-402

IN THE

Supreme Court of the United States

_________

HOWARD L. BALDWIN, ET UX.,

v.

Petitioners,

UNITED STATES,

_________

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

_________

BRIEF OF THE NATIONAL RIGHT TO WORK

LEGAL DEFENSE FOUNDATION, INC. AS AMICUS CURIAE SUPPORTING PETITIONERS

_________

RAYMOND J. LAJEUNESSE, JR.

Counsel of Record

FRANK D. GARRISON

c/o NATIONAL RIGHT TO

WORK LEGAL DEFENSE

FOUNDATION, INC.

8001 Braddock Road, Ste. 600

Springfield, VA 22160

(703) 321-8510

rjl@nrtw.org

Counsel for Amicus

QUESTIONS PRESENTED

1. Should this Court overrule National Cable &

Telecommunications Ass'n v. Brand X Internet Services., 545 U.S. 967 (2005)?

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?

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TABLE OF CONTENTS

Page

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

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

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

SUMMARY OF ARGUMENT ....................................2

ARGUMENT ..............................................................4

Whether this Court should overrule Brand X is a

nationally important constitutional question that affects vast areas of federal administrative law .........4

A. Brand X undermines constitutional due process protections and promotes instability in

the law. .............................................................4

B. Brand X has serious consequences for the

regulated public that reach beyond this

case…................................................................6

C. Overruling Brand X is an important first step

in restoring First Principles to federal administrativelaw…………………………………………………9

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

ii

TABLE OF AUTHORITIES

CASES

Page(s)

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

Inc.,

467 U.S. 837 (1984) ..................................... passim

Commc’ns Workers of Am. v. Beck,

487 U.S. 735 (1988) ...............................................1

Connally v. Gen. Constr. Co.,

269 U.S. 385 (1926) ...............................................4

Deluxe Metal Furniture Co.,

121 N.L.R.B. 995 (1958)....................................... 6

De Niz Robles v. Lynch,

803 F.3d 1165 (10th Cir. 2015) ........................ 5, 8

Dep’t of Transp. v. Ass’n of Am. R.R.s.,

135 S. Ct. 1225 (2015) .......................................... 9

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) ............................................. 4

Gutierrez-Brizuela v. Lynch,

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

Gundy v. United States,

139 S. Ct. 2116 (2019) .......................................... 9

Harris v. Quinn,

573 U.S. 616 (2014) ...............................................1

Int’l Ass’n of Machinists & Aerospace Workers v.

NLRB,

133 F.3d 1012 (7th Cir. 1998) ............................. 2

Janus v. AFSCME.,

138 S. Ct. 2448 (2018) ...........................................1

Knox v. SEIU, Local1000,

567 U.S. 298 (2012) ...............................................1

Michigan v. EPA,

135 S. Ct. 2699 (2015) .......................................... 9

Miklin Enters., Inc. v. NLRB,

861 F.3d 812 (8th Cir. 2017) .............................2, 6

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

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

iii

TABLE OF AUTHORITIES—Continued

Page(s)

NLRB v. New Vista Nursing & Rehab.,

870 F.3d 113 (3d Cir. 2017) ..................................2

Palmetto Prince George Operating, LLC v. NLRB,

841 F.3d 211 (4th Cir. 2016) ............................ 2, 6

Perez v. Mortg. Bankers Ass'n.,

135 S. Ct. 1199 (2015) ........................................ 10

Pirlott v. NLRB,

522 F.3d 423 (D.C. Cir. 2008) ...............................1

SEC v. Chenery Corp. (Chenery II),

332 U.S. 194 (1947) ...........................................5, 8

SNE Enterprises, Inc.

344 N.L.R.B. 673 (2005)....................................... 6

SSC Mystic Operating Co. v. NLRB,

801 F.3d 302 (D.C. Cir. 2015) .............................. 2

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ...........................................4

United Food & Commerical Workers Union, Local

1036 v. NLRB,

307 F.3d 760 (9th Cir. 2002) .................................1

United States v. Mead Corp.,

533 U.S. 218 (2001) .............................................. 8

United States v. Williams,

553 U.S. 285 (2008) .............................................. 4

Whitman v. Am. Trucking Ass'ns,

531 U.S. 457 (2001) .............................................. 9

U.S. CONSTITUTION

Article I § 1 .............................................................8, 9

Article III ...........................................................10, 11

OTHER RULES & AUTHORITIES

Supreme Ct. Rule 37.3(a) .......................................... 1

Supreme Ct. Rule 37.6 .............................................. 1

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Abbe R. Gluck, What 30 Years of Chevron Teach

Us About the Rest of Statutory Interpretation,

83 FORDHAM L. REV. 607 (2014)......................... 10

Douglas H. Ginsburg & Steven Menashi, Our

Illiberal Administrative Law,

10 N.Y.U. J.L. & LIBERTY 475 (2016)................... 7

Gary Lawson, Delegation and Original Meaning,

88 VA. L. REV. 327 (2002) ......................................9

Textualism as Fair Notice,

123 HARV. L. REV. 542 (2009) ...............................4

v

INTEREST OF AMICUS CURIAE1

The National Right to Work Legal Defense Foundation, Inc. has been the nation’s leading litigation advocate for employee free choice concerning unionization since 1968. To advance this mission, Foundation

staff attorneys have represented individual employees

in many cases before this Court.2

The Foundation has an interest in the first question presented in the petition because Foundation

staff attorneys currently represent hundreds of employees across the nation whose free choice to refrain

from unionization and monopoly bargaining depends

on the National Labor Relations Board’s proper implementation of the National Labor Relations Act.

Courts have applied Chevron3 deference in several

cases involving the rights of individual employees under the NLRA.4 And the NLRB has used Chevron deference to argue that the Brand X doctrine allows it to

Pursuant to Supreme Court Rule 37.3(a), both parties received

timely notice of amicus curiae’s intent to file this brief and consented to its filing. Pursuant to Supreme Court Rule 37.6, no

counsel for any party authored this brief in whole or in part, and

no person or entity other than the amicus curiae made a monetary contribution to its preparation or submission.

1

E.g., Janus v. AFSCME, 138 S. Ct. 2448 (2018); Harris v.

Quinn, 573 U.S. 616 (2014); Knox v. SEIU, Local 1000, 567 U.S.

298 (2012); Commc’ns Workers of Am. v. Beck, 487 U.S. 735

(1988).

2

3 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837 (1984).

4 See, e.g., Pirlott v. NLRB, 522 F.3d 423, 434 (D.C. Cir. 2008)

(“The general chargeability issue is a matter for the Board to decide in the first instance.”); United Food & Commercial Workers

Union, Local 1036 v. NLRB, 307 F.3d 760, 766 (9th Cir. 2002) (en

banc) (“Courts are required to defer to the NLRB on statutory

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overrule federal court precedent.5 Circuit court judges

have also advocated for applying the doctrine to NLRA

cases.6 Whether this Court should abandon the Brand

X doctrine is therefore important to the Foundation’s

mission.

SUMMARY OF ARGUMENT

As Petitioners explain, Brand X raises serious separation of powers concerns.7 Indeed, the doctrine

adopted in Brand X8—that Chevron deference allows

administrative agencies to overrule a federal court’s,

including possibly this Court’s, precedent9—results

from the illiberal, unconstitutional deference regime

that pervades modern administrative law. Amicus

writes to provide the Court with a broader context for

interpretation under Chevron.”); Int’l Ass’n of Machinists & Aerospace Workers v. NLRB, 133 F.3d 1012, 1015 (7th Cir. 1998).

5 See, e.g., Miklin Enters., Inc. v. NLRB, 861 F.3d 812, 822–23

(8th Cir. 2017) (en banc); Palmetto Prince George Operating, LLC

v. NLRB, 841 F.3d 211, 216–17 (4th Cir. 2016).

6 See, e.g., NLRB v. New Vista Nursing & Rehab., 870 F.3d 113,

136–44 (3d Cir. 2017) (Greenaway, J. concurring in part, dissenting in part); SSC Mystic Operating Co. v. NLRB, 801 F.3d 302,

315–19 (D.C. Cir. 2015) (Srinivasan, J., concurring).

7 Pet. Br. 20–25.

8 545 U.S. at 982.

9 It is an open question whether Brand X provides an executive

agency the power to overrule this Court. Compare Id. at 1003

(Stevens, J., concurring) (suggesting an agency’s opposite statutory construction “would not necessarily be applicable to a decision by this Court”), with id. at 1016–17 (Scalia, J., dissenting)

(arguing that the decision gives agencies the power to take actions “that the Supreme Court [had] found unlawful”).

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why the Court should grant the petition and overrule

that doctrine.

A. Like most deviations from the Constitution’s

original meaning, Brand X has secondary consequences. It circumvents the rule of law by allowing an

executive branch agency to overrule a federal court

precedent—no matter how long that decision has been

on the books. This, in turn, destroys fundamental due

process protections—i.e., reliance and fair notice.

What’s more, when the executive branch overrules a

judicial decision under Brand X, it can be applied retroactively, which also undermines the rule of law.

B. Whether this Court should overrule Brand X is

a question that has important ramifications for federal law that reach beyond this case. Brand X is a

ubiquitous problem in administrative law. Federal

agencies like the NLRB routinely use Chevron deference to change the meaning of federal statutes—causing serious damage to the rights and liberties of the

regulated public. And more recently, the NLRB has

advocated for the power under Brand X to overrule

circuit court precedent finding its actions violated the

NLRA.

C. Granting the petition and overruling Brand X

does not require this Court to revisit the administrative state wholesale. But overruling Brand X would be

an important first step in restoring First Principles to

federal administrative law.

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ARGUMENT

Whether this Court should overrule Brand X is

a nationally important constitutional question

that affects vast areas of federal administrative

law.

A. Brand X undermines constitutional due

process protections and promotes instability in the law.

It is axiomatic that fair notice is a fundamental aspect of due process and the rule of law. Indeed, “[p]erhaps the most basic of due process’s customary protections is the demand of fair notice.”10 When it comes to

administrative agencies, the Court has long recognized a fundamental tenet of the Due Process Clause

requires that laws “which regulate persons or entities

must give fair notice of conduct that is forbidden or

required.”11 An agency’s action will thus violate due

process when a “regulation under which it is obtained

‘fails to provide a person of ordinary intelligence fair

notice of what is prohibited, or is so standardless that

it authorizes or encourages seriously discriminatory

enforcement.’”12

Brand X turns this fundamental principle on its

head. An executive agency can decide—after a person

has acted—what an ambiguous law means and bind

10 Sessions v. Dimaya, 138 S. Ct. 1204, 1225 (2018) (Gorsuch, J.

concurring) (citing Connally v. Gen. Constr. Co., 269 U.S. 385,

391 (1926); see also Note, Textualism as Fair Notice, 123 HARV.

L. REV. 542, 543 (2009) (“From the inception of Western culture,

fair notice has been recognized as an essential element of the rule

of law”).

11 FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).

Id. (quoting United States v. Williams, 553 U.S. 285, 306

(2008).

12

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that person to the agency’s post-hoc interpretation. All

after a federal court has issued a contrary interpretation of the law.

What’s more, when Chevron and Brand X are

mixed with the retroactivity doctrine of Chenery II, a

liberty destroying cocktail is created.13 Chenery II on

its own subverts fair notice by allowing executive lawmaking to apply retroactively. In the process of deferring to agency discretion, the Court in Chenery II upheld a rule applied for the first time in an adjudication

that made illegal conduct that was perfectly legal before that adjudication. In describing the Court’s decision as “lawlessness” in his dissent, Justice Jackson

noticed the problem from the outset: “This decision is

an ominous one to those who believe that men should

be governed by laws that they may ascertain and

abide by, and which will guide the action of those in

authority as well as of those who are subject to authority.”14

But now imagine that an administrative agency

not only applies a new rule to your case, but also does

so after a circuit court has ruled your actions conformed to a statute. This seems to be the very absence

of fair notice. Yet that is what happened to Petitioners

here.15

The Court should thus take this opportunity to revisit and overrule the Brand X doctrine to ensure, in

SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 202–03

(1947); see De Niz Robles v. Lynch, 803 F.3d 1165, 1173 (10th

Cir., 2015) (discussing the constitutional problems when Chevron deference and Brand X are combined with the doctrine announced in Chenery II.

13

14 Chenery II, 332 U.S. at 217 (Jackson, J. dissenting) (footnote

omitted).

15 See Pet. Br. 12-13.

5

cases like this, that every litigant has the fair notice

which the Constitution requires.

B. Brand X has serious consequences for the

regulated public that reach beyond this

case.

Petitioners’ case is not an anomaly. Although it is

a prime example of the significant, illiberal ramifications of Chevron deference coupled with the Brand X

doctrine, this case is merely one in a litany of cases in

which administrative deference has operated against

the Constitution and done violence to individual liberty.

For example, Chevron deference has for years allowed federal administrative agencies like the NLRB

to make federal law—sometimes retroactively16—

based on political decisions. More recently, moreover,

the NLRB has not only used Chevron to reinterpret

the NLRA, but has also sought to overrule circuit

court precedent using Brand X.17

One of the primary rationales for Chevron deference is that agency “experts” are better equipped to

determine the evolving policy for the nation:

Judges are not experts in the field, and

are not part of either political branch of

the Government . . . . In contrast, an

agency to which Congress has delegated

policy-making responsibilities may,

within the limits of that delegation,

16 “The Board's usual practice is to apply new policies and stand-

ards retroactively ‘to all pending cases in whatever stage.”’ SNE

Enterprises Inc., 344 N.L.R.B. 673, 673 (2005) (quoting Deluxe

Metal Furniture Co., 121 N.L.R.B. 995, 1006–07 (1958)).

17 See, e.g., Miklin Enters., Inc., 861 F.3d at 822–823; Palmetto

Prince George Operating, LLC, 841 F.3d at 216–17.

6

properly rely upon the incumbent administration’s views of wise policy to inform

its judgments.18

But, what administrative agencies engage in is not

always based on “expertise.” Judges and scholars have

criticized the NLRB in particular for engaging in excessive legal and policy oscillation from administration to administration based on political considerations, not expert policymaking. As one federal judge

has described the problem:

Sometimes the claim to expertise is entirely fraudulent; the most well-documented case is that of the National Labor

Relations Board, the partisan majority of

which routinely displaces the previous

majority’s psychological assertions about

what employer tactics do or do not coerce

workers when they are deciding whether

to vote for union representation. Most often, however, expertise is simply a euphemism for policy judgments. The permanent staff of an agency may have a

great deal of technical expertise, but the

agency’s ultimate decisions are made by

the experts’ political masters, who have

sufficient discretion that they can make

decisions based upon their own policy

preferences, fearing neither that the expert staff will not support them nor that

a court will undo their handiwork.19

18 Chevron, 467 U.S. at 865.

19 Douglas H. Ginsburg & Steven Menashi, Our Illiberal Admin-

istrative Law, 10 N.Y.U. J.L. & LIBERTY 475, 482–83 (2016) (footnote omitted).

7

To be sure, granting agencies like the NLRB deference to say what the law is prevents “ossification of

large portions of our statutory law.”20 Even so, a fundamental underpinning of the rule of law and separation of powers is the ossification (i.e., stabilization) of

the law, unless Congress acts through its Article I

power to change it.

When combined, however, Chevron, Brand X, and

Chenery II allow an executive agency to change the

law retroactively with the political winds (or for no apparent reason at all)—all after a federal court has already ruled on the statutory issue.21 As a result, regulated individuals do not have fair notice before the

government changes their legal rights. It is thus important to cabin agencies’ ability to rewrite the law

and overrule federal court precedent—especially

when an administrative agency is acting according to

political rather than legal considerations.

United States v. Mead Corp., 533 U.S. 218, 247–48 (2001)

(Scalia, J., dissenting).

20

21 See De Niz Robles, 803 F.3d at 1176 (“in the Chevron step two/

Brand X context, it’s easy to see the ‘ill effect[s]’ of retroactivity:

upsetting settled expectations with a new rule of general applicability, penalizing persons for past conduct, doing so with a full

view of the winners and losers—all with a decisionmaker driven

by partisan politics.”).

8

C. Overruling Brand X is an important first

step in restoring First Principles to administrative law.

The trouble begins with the Court’s nondelegation

jurisprudence. Article I vests all legislative power in

Congress—not some, but all.22 Article I’s plain meaning should prevent the legislative branch from subdelegating its legislative power to another branch.23

But the Court does not, at least modernly, police that

line. 24

This Court’s failure to prevent Congress’ delegation of power begets the environment for Chevron deference. Indeed, Chevron flows from abandoning Article I’s text. Chevron deference is based on a legal fiction. That fiction assumes Congress implicitly delegates its power through ambiguous statutory language (or no statutory language at all, i.e., silence) so

that an administrative agency can make binding legislative rules and regulations.25

This implied delegation fiction not only allows the

transfer of Article I power, but also allows executive

22 See U.S. Const. art. I, § 1; see also Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 472 (2001) (“Article I, § 1 . . . permits no

delegation of those powers . . . .”).

23 See Gundy v. United States, 139 S. Ct. 2116, 2133 (2019) (Gor-

such, J., dissenting); see also Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 336–37 (2002).

24 Dep’t of Transp. v. Ass’n of Am. R.R.s., 135 S. Ct. 1225, 1250

(2015) (Thomas, J., concurring in the judgment).

25 “Statutory ambiguity . . . becomes an implicit delegation of

rule-making authority, and that authority is used not to find the

best meaning of the text, but to formulate legally binding rules

to fill in gaps based on policy judgments made by the agency rather than Congress.” Michigan v. EPA, 135 S. Ct. 2699, 2713

(2015) (Thomas, J., concurring).

9

agencies to exercise Article III power. It “precludes

judges from exercising [independent] judgment, forcing them to abandon what they believe is ‘the best

reading of an ambiguous statute’ in favor of an

agency’s construction.”26 And along the way disables

one of the Constitution’s primary structural protections of individual liberty: the judiciary’s responsibility to apply the law “as a ‘check’ on the excesses of both

the Legislative and Executive Branches.”27

With Article III out of the way, Brand X enters the

anti-constitutional regime.28 In what one scholar described as a “‘WOW’ moment,” the Court took Chevron

deference deeper into the anti-constitutional abyss by

adopting the Brand X doctrine—which became the

“capstone of the Court’s Chevron evolution: [working]

a wholesale transfer of statutory interpretation authority from federal courts to agencies.”29

As Petitioners point out, overruling Brand X does

not require a wholesale restoration of the Constitution’s original design. The Court neither has to revisit

the nondelegation doctrine nor Chevron deference if it

grants the petition.30 But the Court can nevertheless

begin to crawl back from the abyss by reasserting its

26 Id. at 2712 (citing Brand X, 545 U.S. at 983).

27 Perez v. Mortg. Bankers Ass’n., 135 S. Ct. 1199, 1220 (2015)

(Thomas, J. concurring in the judgment) (citations omitted).

28 Or as one member of this Court put it: “Founders meet Brand

X.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1150 (10th Cir.

2016) (Gorsuch., J. concurring).

29 Abbe R. Gluck, What 30 Years of Chevron Teach Us About the

Rest of Statutory Interpretation, 83 FORDHAM L. REV. 607, 625

(2014).

30 See Pet. Br. 25.

10

Article III power and abandoning Brand X. The Court

should grant the petition and do so in this case.

CONCLUSION

For all these reasons, and those which Petitioners

stated, the Court should grant the petition.

Respectfully submitted,

RAYMOND J. LAJEUNESSE, JR.

Counsel of Record

FRANK D. GARRISON

CC/o NATIONAL RIGHT TO

WORK

LEGAL

DEFENSE

FOUNDATION, INC.

8001 Braddock Road

Suite 600

Springfield, VA 22160

(703) 321-8510

rjl@nrtw.org

October 25, 2019

11