Amicus Curiae Brief — Starbucks Corporation, Petitioner v. M. Kathleen McKinney, Regional Director of Region 15 of the National Labor Relations Board, for and on Behalf of the National Labor Relations Board

No. 23-367

IN THE

Supreme Court of the United States

__________

STARBUCKS CORPORATION, Petitioner,

v.

M. KATHLEEN MCKINNEY, REGIONAL DIRECTOR OF

REGION 15 OF THE NATIONAL LABOR RELATIONS

BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR

RELATIONS BOARD, Respondent.

__________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

__________

BRIEF OF REMEDIES SCHOLARS AS AMICI CURIAE IN

SUPPORT OF RESPONDENT

__________

CAPRICE L. ROBERTS

Louisiana State University

Paul M. Hebert Law

Center

1 East Campus Drive

Baton Rouge, LA

70803

DOUG RENDLEMAN,

Emeritus

Washington & Lee

University School of Law

1 Denny Circle

Lexington, VA 24450

LEON DAYAN

(Counsel of Record)

RICHARD F. GRIFFIN,

JR.

Bredhoff & Kaiser PLLC

805 15th Street NW

Suite 1000

Washington, DC 20005

(202) 842-2600

ldayan@bredhoff.com

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ............................... 1

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

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

Traditional Equity Practice in Statutory Injunction

Cases Honors the Role of Public Agencies as

Representatives of the Public Interest ...................... 4

CONCLUSION ......................................................... 20

ii

TABLE OF AUTHORITIES

Page(s)

Cases

All. for Wild Rockies v. Cottrell,

632 F.3d 1127 (9th Cir. 2011)................................8

Barney v. City of New York,

82 N.Y.S. 124 (App. Div. 1903) ..............................7

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

Council, Inc.,

467 U.S. 837 (1984)........................................16, 17

Citigroup Glob. Mkts., Inc. v. VCG Special

Opportunities Master Fund, Ltd.,

598 F.3d 30 (2d Cir. 2010) .....................................8

Danielson v. Joint Bd. of Coat, Suit &

Allied Garment Workers Union,

494 F. 2d 1230 (2d Cir. 1974) ..............................13

Davis v. Pension Benefit Guar. Corp.,

571 F.3d 1288 (D.C. Cir. 2009) ..............................8

eBay, Inc. v. MercExchange, LLC,

547 U.S. 388 (2006)..............................................11

Eggers v. Evnen,

48 F.4th 561 (8th Cir. 2022) ................................10

Garner v. Teamsters, Chauffeurs &

Helpers Loc. Union No 776,

346 U.S. 485 (1953)................................................5

iii

Georgia v. Brailsford,

2 U.S. (2 Dall.) 402 (1792) .....................................7

Hecht Co. v. Bowles,

321 U.S. 321 (1944).......................... 2, 5, 12-16, 18

Hoosier Energy Rural Elec. Coop., Inc. v.

John Hancock Life Ins. Co.,

582 F.3d 721 (7th Cir. 2009)..................................8

Hughes Aircraft Co. v. United States ex

rel. Schumer,

520 U.S. 939 (1997)..............................................12

J.I. Case Co. v. NLRB,

321 U.S. 332 (1944)..............................................18

Kansas v. Nebraska,

574 U.S. 445 (2015)..............................................14

Karem v. Trump,

960 F.3d 656 (D.C. Cir. 2020) ..............................10

Kaynard v. Mego Corp.,

633 F.2d 1026 (2d Cir. 1980) ...............................17

Kinney v. Pioneer Press,

881 F.2d 485 (7th Cir. 1989)................................14

Michigan v. U.S. Army Corps of Eng’rs,

667 F.3d 765 (7th Cir. 2011)................................12

National Licorice Co. v. NLRB,

309 U.S. 350 (1940)..............................................18

Nken v. Holder,

556 U.S. 418 (2009).................................. 3, 7, 9, 10

iv

O Centro Espirita Beneficiente Uniao Do Vegetal

v. Ashcroft,

389 F.3d 973 (10th Cir. 2004)................................7

Phelps Dodge Corp. v. NLRB,

313 U.S. 177 (1941)..............................................19

Phx. Ry. Co. of Ariz. v. Geary,

239 U.S. 277 (1915)................................................9

Reilly v. City of Harrisburg,

858 F.3d 173 (3d Cir. 2017) ...................................8

Roman v. Wolf,

977 F.3d 935 (9th Cir. 2020)................................10

Salinger v. Colting,

607 F.3d 68 (2d Cir. 2010) .....................................8

Swain v. Junior,

961 F.3d 1276 (11th Cir. 2020)............................10

We the Patriots USA, Inc. v. Hochul,

17 F.4th 266 (2d Cir. 2021)..................................10

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008).....................3, 4, 6-11, 15, 16, 18

Statutes

29 U.S.C. § 160 ................................ 4, 5, 13, 14, 18, 19

Other Authorities

Dan B. Dobbs & Caprice L. Roberts, Law

of Remedies: Damages, Equity,

Restitution (3d ed. 2018) ............................ 8, 11, 16

v

David I. Levine, David J. Jung & Tracy

A. Thomas, Remedies: Public and

Private (5th ed. 2009) ..........................................11

John Leubsdorf, The Standard for

Preliminary Injunctions, 91 Harv. L.

Rev. 525 (1978) ......................................................7

Mark P. Gergen, John M. Golden &

Henry E. Smith, The Supreme

Court’s Accidental Revolution?-The

Test for Permanent Injunctions, 112

Colum. L. Rev. 203 (2012) .............................10, 17

Note, The Preliminary Injunction

Standard: Understanding the Public

Interest Factor, 117 Mich. L. Rev.

939 (2019) .............................................................12

INTEREST OF AMICI CURIAE

Amici Caprice L. Roberts and Doug Rendleman

are law professors who study and publish on the law

of remedies, including equitable remedies.

Professor Roberts is Associate Dean of Faculty

Development & Research and the J.Y. Sanders

Professor of Law at Louisiana State University Paul

M. Hebert Law Center. She revitalized the leading

treatise on the law of remedies, Dan B. Dobbs &

Caprice L. Roberts, Law of Remedies: Damages,

Equity, Restitution (3d ed. 2018), and has published

numerous articles on equitable remedies.

Professor Rendleman is the Robert E.R. Huntley

Professor of Law, Emeritus, at Washington & Lee

University. He coauthored with Owen Fiss the

authoritative work on the law of injunctions and is the

author of casebooks and articles on injunctions,

contempt, and equitable discretion.

Professors Roberts and Rendleman both have

served in the role of Adviser to the American Law

Institute project Restatement (Third) of Torts:

Remedies, and they co-authored the casebook Doug

Rendleman & Caprice L. Roberts, Remedies: Cases

and Materials (9th ed. 2018). 1

1 This brief was prepared and funded entirely by amici and

their counsel. No other person contributed financially or

otherwise. None of the universities where amici are employed

takes any position on the issues in this case.

The American Law Institute speaks only through its

Restatements, Principles of the Law, and similar projects. Each

such project is carefully reviewed and formally approved by both

its governing Council and its membership. This brief is not a

statement of the American Law Institute.

2

Amici fear that multiple aspects of Petitioner’s

position, if adopted, would threaten the traditional

flexibility of courts of equity in statutory injunction

cases. Equity in statutory injunction cases has not

prohibited consideration of statutory policy in

determining whether temporary injunctive relief is

appropriate. Nor, in cases where a public agency is

itself one of the parties, has equity prohibited

deference to the statutory role of the agency as

representative of the public interest for purposes of

weighing a potential injunction, let alone has equity

required courts in such cases to treat governmental

litigants on a par with self-interested private

litigants. An overly strained view of equitable

discretion in issuing injunctions under statutory

authorizations is both ahistorical and unwise.

SUMMARY OF ARGUMENT

1. Traditional equity practice is not the rigid and

rote exercise portrayed by Petitioner in which courts

mechanically tick off numbered factors in a set list

without regard to the role of a governmental party in

the case as a representative of the public interest. To

the contrary, this Court declared eight decades ago

that “[f]lexibility rather than rigidity” distinguished

courts of equity from courts of law, and that, in cases

where the government is a party, district courts

should follow equity courts’ “traditional practices, as

conditioned by the necessities of the public interest

which Congress has sought to protect.” Hecht Co. v.

Bowles, 321 U.S. 321, 329-30 (1944) (emphasis

added).

Consistent with that tradition, both modern courts

and their common-law predecessors have identified

circumstances where a given structural feature of a

3

case guides how one or more of the commonly applied

preliminary-injunction factors will resolve.

For example, in the leading preliminaryinjunction case, Winter v. Natural Resources Defense

Council, Inc., the Government was the defendant, and

this Court faulted the district court judge who had

issued the preliminary injunction for failing, in

weighing the “public interest” factor, to give

“deference to the professional judgment of military

authorities” as reflected in litigation declarations

from Navy officers. 555 U.S. 7, 24 (2008) (internal

citation omitted).

Similarly, in Nken v. Holder, the Court, after

noting the functional overlap between the Winter

preliminary-injunction factors and the familiar

interim-stay factors, explained that the third factor

(hardship to the party opposing interim relief) and the

fourth factor (the public interest) “merge when the

Government is the opposing party,” because the

Government’s role is to advance the public interest.

556 U.S. 418, 435 (2009). In the wake of Nken, the

courts of appeal, while remaining faithful to the

principles animating the four-part inquiry, apply the

functional equivalent of a three-part inquiry to

preliminary-injunction

motions

where

the

government is the nonmoving party.

While in Winter and Nken, a public agency was the

defendant and not, as here, the plaintiff, there is no

basis, in equity or in reason, for an approach under

which the public-interest factor weighs in the

Government’s favor when it is the defendant in a suit

brought by a private litigant but not when it is the

plaintiff in a suit brought against a private litigant.

4

2. The approach Petitioner advances for resolving

cases brought by the National Labor Relations Board

(NRLB) under Section 10(j) of the National Labor

Relations Act (NLRA), 29 U.S.C. § 160(j), is

inconsistent with equity principles as enunciated in

this Court’s precedents. Invoking Winter, Petitioner

contends, for example, that, under equity practice, the

“United States and private parties” must “operate[]

on a level playing field.” Pet. Br. 2. Yet Winter itself,

as well as Nken, recognize that when the United

States is a party, the “public interest” factor—quite

appropriately—tilts in its favor and even “merges”

with the third factor. Petitioner also misstates equity

practice in other important ways.

In contrast to Petitioner’s submission, the

Government’s submission in this case is fully

consistent with the principles traditionally applied to

equitable cases filed by public agencies, as it honors

the role of the Government as a representative of the

public interest. It also makes sense of the particular

structure of the NLRA, under which Congress

withheld jurisdiction from district courts to decide the

underlying merits of unfair labor practice cases and

left that jurisdiction with the NLRB itself.

ARGUMENT

Traditional Equity Practice in Statutory

Injunction Cases Honors the Role of Public

Agencies as Representatives

of the Public Interest

This Court has decided numerous temporary

injunction cases, but it has never addressed the

criteria for evaluating whether to grant or withhold

temporary relief in cases arising under a statutory

5

scheme bearing these features: (1) the statute divests

the federal district courts of jurisdiction to adjudicate

claims of violation of the statute; (2) the statute vests

that jurisdiction instead in an administrative agency

possessing expertise over the subject matter of the

dispute; and (3) the statute empowers the agency to

seek provisional relief from the district courts even

while continuing to withhold from those courts, and

vest solely with the agency, the jurisdiction to

adjudicate claims on their merits.

These features of course describe the National

Labor Relations Act, as amended in 1947 with the

Taft-Hartley Act’s addition of Sections 10(j) and 10(l),

29 U.S.C. §§ 160(j), (l). See Garner v. Teamsters,

Chauffeurs & Helpers Loc. Union No 776, 346 U.S.

485, 490 (1953) (Congress, in enacting and then

amending the National Labor Relations Act,

“confide[d] primary interpretation and application of

its [unfair labor practice] rules to a specific and

specially constituted tribunal and prescribed a

particular procedure for investigation, complaint and

notice, and hearing and decision, including judicial

relief pending a final administrative order.”).

While this Court never has had occasion to spell

out the criteria for evaluating temporary injunction

requests in this context, it has a well-developed

jurisprudence in the general area of statutory

injunctions, which follows equity courts’ “traditional

practices, as conditioned by the necessities of the

public interest which Congress has sought to protect.”

Hecht Co. v. Bowles, 321 U.S. 321, 330 (1944)

(emphasis added). That jurisprudence is consistent

with the position taken by Respondent in this case

6

and inconsistent with the position advanced by

Petitioner.

As developed below, equity courts in statutory

cases do not treat governmental litigants on a par

with self-interested private litigants in evaluating

whether a proposed injunction would comport with or

conflict with the public interest. To the contrary,

whether the Government is the defendant resisting

an injunction or the plaintiff advocating for one,

courts of equity have recognized and respected the

role of public agencies as representatives of the public

interest. Nor do equity courts fixate on how the

considerations that inform whether to grant or deny

a proposed injunction translate into a specific number

of factors; they are focused on substance rather than

form. Indeed, this Court itself has recognized classes

of equity cases where it is appropriate to collapse two

factors into one rather than mechanically tick off

factors separately even in circumstances when they

fully overlap.

A. The Court’s leading preliminary injunction

case, Winter v. Natural Resources Defense Council,

Inc., 555 U.S. 7 (2008), addressed the common fact

pattern where the district court that was presented

with the preliminary injunction application also

would be the court to resolve the ultimate merits and

determine if permanent injunctive relief were

appropriate. In that circumstance, the plaintiff is

required to persuade the district court “that he is

likely to succeed on the merits, that he is likely to

suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor,

and that an injunction is in the public interest.” Id. at

20.

7

The four Winter factors are the same in substance

as the factors that courts use to evaluate whether to

grant a stay pending appeal. In Nken v. Holder,

decided the same Term as Winter, the Court set out

the four factors as follows: “(1) whether the stay

applicant has made a strong showing that he is likely

to succeed on the merits; (2) whether the applicant

will be irreparably injured absent a stay; (3) whether

issuance of the stay will substantially injure the other

parties interested in the proceeding; and (4) where the

public interest lies.” 556 U.S. 418, 426 (2009). The

Nken Court explained that, while a stay is not a

preliminary injunction, the interim relief factors

overlap in substance “because similar concerns arise

whenever a court order may allow or disallow

anticipated action before the legality of that action

has been conclusively determined.” Id. at 434.

The Winter factors include common equitable

considerations used in American courts beginning in

the early 20th century. See John Leubsdorf, The

Standard for Preliminary Injunctions, 91 Harv. L.

Rev. 525, 539 & n. 85 (1978) (citing Barney v. City of

New York, 82 N.Y.S. 124 (App. Div. 1903), as

introducing the “public interest” factor into the

inquiry in American courts). 2 But variations in

federal (and state) cases preceded Winter, 3 and

2 Petitioner claims (Br. 19) that “[t]his Court has required those

four factors since Georgia v. Brailsford, 2 U.S. (2 Dall.) 402

(1792)—this Court’s second decision.” One reads Brailsford in

vain, however, for any mention of the “public interest” factor.

3 See, e.g., O Centro Espirita Beneficiente Uniao Do Vegetal v.

Ashcroft, 389 F.3d 973 (10th Cir. 2004) (en banc), affirmed

without discussing the preliminary injunction standard,

Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546

U.S. 418 (2006).

8

variations remain after Winter. See Dan B. Dobbs &

Caprice L. Roberts, Law of Remedies: Damages,

Equity, Restitution 192-96 (3d ed. 2018).

For example, many federal courts of appeal

continue to apply a sliding scale technique under

which a quantum of strength for one factor may vary

based on the quantum shown for another factor. Id. at

194-95 (discussing, inter alia, Citigroup Glob. Mkts.,

Inc. v. VCG Special Opportunities Master Fund, Ltd.,

598 F.3d 30, 35-37 (2d Cir. 2010)). Thus, the court

may allow a plaintiff with a very compelling showing

of irreparable harm to prevail with a lesser showing

of likelihood of success on the merits than would be

necessary for a similar plaintiff with a less compelling

irreparable harm showing. 4

B. While the same basic factors have been part of

equity jurisprudence for decades, both modern courts

4 See, e.g., Salinger v. Colting, 607 F.3d 68, 79 (2d Cir. 2010)

(“[P]laintiff [must] demonstrate[] either (a) a likelihood of

success on the merits or (b) sufficiently serious questions going

to the merits to make them a fair ground for litigation and a

balance of hardships tipping decidedly in the [plaintiff’s] favor.”)

(internal quotations omitted); Reilly v. City of Harrisburg, 858

F.3d 173, 177, 179–80 (3d Cir. 2017) (sliding scale); All. for Wild

Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (same); Davis

v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir.

2009) (same); Hoosier Energy Rural Elec. Coop., Inc. v. John

Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (same).

See also Winter, 555 U.S. at 51 (Ginsburg, J., dissenting)

(“[C]ourts do not insist that litigants uniformly show a

particular, predetermined quantum of probable success or injury

before awarding equitable relief. Instead, courts have evaluated

claims for equitable relief on a ‘sliding scale,’ sometimes

awarding relief based on a lower likelihood of harm when the

likelihood of success is very high. This Court has never rejected

that formulation, and I do not believe it does so today.”)

(emphasis added).

9

and their common-law predecessors alike have

identified circumstances where a given structural

feature of a case either guides how one or more of the

factors will resolve or indicates that one factor will be

redundant with another.

In Winter itself, for example, the Court faulted the

district court judge who had issued the preliminary

injunction for failing to give “deference to the

professional judgment of military authorities”—as

reflected in litigation declarations from Navy

officers—regarding the question whether particular

environmental restrictions on sonar training would

impair the nation’s defense readiness against hostile

submarines. 555 U.S. at 24 (citation omitted). The

Court added that, while “military interests do not

always trump other considerations, and we have not

held that they do,” it was not merely permissible, but

necessary, for the trial court to give substantial

weight to the military officers’ declarations in

evaluating the “public interest” factor. Id. at 26. See

also Phx. Ry. Co. of Ariz. v. Geary, 239 U.S. 277, 282

(1915) (applying a “presumption of reasonableness” in

favor of a state administrative agency at the

preliminary-injunction stage).

And in Nken, the Court explained that the third

factor in the interim-stay analysis (hardship to the

party opposing the injunction) and the fourth factor

(the public interest) “merge when the Government is

the opposing party,” because the Government’s role is

to advance the public interest. 556 U.S. at 435. In the

same vein, the Court faulted “some [lower] courts” for

treating the Department of Justice and federal

immigration authorities like self-interested private

10

litigants when assessing stay requests in immigration

removal cases. Id.

The courts of appeal, taking a cue from Nken, have

said the same thing about the third and fourth Winter

factors in preliminary-injunction cases. See Eggers v.

Evnen, 48 F.4th 561, 564-65 (8th Cir. 2022) (“The

balance-of-harms and public-interest factors ‘merge

when the Government’—or, in this case, a state

official in his official capacity—‘is the [nonmoving]

party’” (quoting Nken; brackets in original)); We the

Patriots USA, Inc. v. Hochul, 17 F.4th 266, 295 (2d

Cir. 2021) (likewise applying the Nken merger of the

third and fourth factors to preliminary-injunction

cases involving the government); Roman v. Wolf, 977

F.3d 935, 940-41 (9th Cir. 2020) (same); Swain v.

Junior, 961 F.3d 1276, 1293 (11th Cir. 2020) (same);

Karem v. Trump, 960 F.3d 656, 668 (D.C. Cir. 2020)

(same).

The practical effect is that the courts, while

remaining faithful to the principles animating the

four-part inquiry, apply the functional equivalent of a

three-part inquiry to preliminary injunction motions

where the Government is the nonmoving party. And

that adjustment is entirely faithful to traditions of

equity, which never insisted on a mechanical

processing of numbered factors and always permitted

categories of similar cases to be treated similarly. See

Mark P. Gergen, John M. Golden & Henry E. Smith,

The Supreme Court’s Accidental Revolution?—The

Test for Permanent Injunctions, 112 Colum. L. Rev.

203, 206, 242 (2012) (“traditional equitable practice”

regularly made use of “structured sets of

presumptions”

to

minimize

idiosyncratic

decisionmaking by individual judges and to provide

11

“meaningful guidance to both courts trying to decide

cases and private parties trying to tune their

expectations appropriately”); see also eBay, Inc. v.

MercExchange, LLC, 547 U.S. 388, 395 (2006)

(Roberts, C.J., concurring) (equity courts need not

“[write] on an entirely clean slate” with each new

case; “[d]iscretion is not whim, and limiting discretion

according to legal standards helps promote the basic

principle of justice that like cases should be decided

alike”) (citation omitted). 5

C. There is no reason why the public-interest

factor should weigh in the Government’s favor when

it is the defendant in a suit brought by a private

litigant but not when it is the plaintiff in a suit

brought against a private litigant. The difference

between public and private actors is at least as stark

in that context. This Court has held that, “[a]s a class

of plaintiffs,” private parties “are different in kind

than the Government,” because “[t]hey are motivated

primarily by prospects of monetary reward rather

than the public good” and are “thus less likely than is

Just as courts sometimes merge two factors into one, they

sometimes expand one factor into two. For example, this Court’s

leading permanent injunction case, eBay, supra, sets out four

factors to guide the inquiry, two factors of which—“that [movant]

has suffered an irreparable injury” and “that remedies available

at law, such as monetary damages, are inadequate to

compensate for that injury,” 547 U.S. at 391—are an expansion

of the single “irreparable harm” factor set forth in earlier cases.

See David I. Levine, David J. Jung & Tracy A. Thomas,

Remedies: Public and Private 100 (5th ed. 2009) (“[eBay] factor

2, no adequate remedy at law, and factor 1, irreparable injury,

are two ways of saying the same thing”). In Winter, the Court

“collapsed” those two eBay factors back into one. See Dan B.

Dobbs & Caprice L. Roberts, Law of Remedies: Damages, Equity,

Restitution 186 (3d ed. 2018).

5

12

the Government to forgo an action arguably based on

a mere technical noncompliance” with a statute.

Hughes Aircraft Co. v. United States ex rel. Schumer,

520 U.S. 939, 949 (1997).

For similar reasons, a governmental agency that

is statutorily authorized to initiate temporary (or

permanent) injunction cases is more likely than an

ordinary private-party litigant to take public, and not

merely private, interests into account in deciding

when to invoke the courts’ equitable powers—and

more likely to eschew bringing unimportant or

technical noncompliance cases. It should thus come as

no surprise that courts long have found the publicinterest factor to be met in the ordinary course when

the Government seeks injunctive relief to prevent

ongoing violations of a federal statute. See Note, The

Preliminary Injunction Standard: Understanding the

Public Interest Factor, 117 Mich. L. Rev. 939, 954

(2019) (“whether the government seeks the

preliminary injunction or opposes it,” the publicinterest factor favors the government, at least when

it is acting in its sovereign rather than proprietary

capacity). Cf. Michigan v. U.S. Army Corps of Eng’rs,

667 F.3d 765, 789 (7th Cir. 2011) (because both sides

were governmental bodies, the public-interest factor

dropped out).

Indeed, one of the more emphatic expressions of

the proposition that courts in statutory injunction

cases should respect the views of a public-agency

plaintiff came in Hecht, a leading case that Petitioner

13

mistakenly invokes in support of its position here.

Pet. Br. 22, 26. 6

In Hecht, this Court upheld the denial of an

injunction sought by a federal agency empowered by

statute to bring injunction actions, but only because

the statutory violations at issue all had been the

product of innocent mistakes that had ceased before

the suit was filed. 321 U.S. at 329. While the Court

held that an injunction under such circumstances was

not in accord with traditional principles of equity, the

Court did not in any way suggest that those principles

inflexibly required courts to pretend that statutory

injunction cases were to be evaluated as if both sides

were private parties litigating a property dispute or

to disregard the objectives of the statute or the status

of public-agency plaintiffs as representatives of the

public interest.

Quite the contrary. Observing that “[f]lexibility

rather than rigidity” distinguished courts of equity

from courts of law, id. at 329, the Court held that

district courts should follow equity courts’ “traditional

practices, as conditioned by the necessities of the

public interest which Congress has sought to protect,”

id. at 330 (emphasis added). So that its point could

not be lost, the Court continued:

We do not mean to imply that courts should

administer [the injunctive-relief provision of

6 As Judge Friendly observed, Hecht, decided in 1944, was “a

decision of such widely recognized significance that it is not

unreasonable to attribute knowledge of it to at least some of the

framers of the Taft-Hartley Act of 1947 in which §§ 10(j) and

10(l) originated.” Danielson v. Joint Bd. of Coat, Suit & Allied

Garment Workers Union, 494 F. 2d 1230, 1240 (2d Cir. 1974)

(footnote omitted).

14

the statute] grudgingly…. [C]ourt and agency

are not to be regarded as wholly independent

and unrelated instrumentalities of justice, each

acting in the performance of its prescribed

statutory duty without regard to the

appropriate function of the other in securing

the plainly indicated objects of the statute….

[The courts’] discretion under [the statute]

must be exercised in light of the large

objectives of the Act. For the standards of the

public interest not the requirements of private

litigation measure the propriety and need for

injunctive relief in these cases.

Hecht, 321 U.S. at 330 (emphasis added).

These principles retain their vitality, for as the

Court explained less than a decade ago: “When

federal law is at issue and ‘the public interest is

involved,’ a federal court’s ‘equitable powers assume

an even broader and more flexible character than

when only a private controversy is at stake.’” Kansas

v. Nebraska, 574 U.S. 445, 456 (2015) (citation

omitted).

The Seventh Circuit’s § 10(j) decision in Kinney v.

Pioneer Press, 881 F.2d 485 (7th Cir. 1989)

(Easterbrook, J.), another case that Petitioner

invokes (Br. 35), is to the same effect. Pioneer Press

holds that district courts should decide § 10(j) cases

“under the approach traditionally applied to equitable

cases filed by public agencies.” Id. at 493 (emphasis

added). That approach, as previously shown, does not

require, or even permit, the district court to blind

itself either to the status of the public agency as a

representative of public or to the public policies

expressed by the statute. Indeed, in Pioneer Press, the

15

Seventh Circuit faulted the district court for taking

an approach that Petitioner here seems to invite (Br.

31), in that one ground the district court gave for

denying the requested temporary injunction was that

“‘[s]ection 10(j) is reserved for more serious and

extraordinary circumstances than presented here.’”

Id. To deny the injunction on that ground, the court

of appeals explained, was for the district court to

“attempt to exercise the Board’s prosecutorial

discretion.” Id.

D. The equity principles outlined above are

inconsistent with Petitioner’s submission in at least

four respects.

First, those principles are contrary to Petitioner’s

assertion that the “the United States and private

parties alike have thus operated on a level playing

field.” Pet. Br. 2. Winter itself, as well as Nken,

recognize that when the United States is a party, the

“public interest” factor—quite appropriately—tilts in

its favor and even “merges” with the third factor. It

was the lower courts in those cases that erred in

treating the United States no differently than a

private defendant.

Second, those principles are contrary to

Petitioner’s assertion that equity courts in statutory

injunction cases brought by public agencies are

supposed to serve as an “independent check” on the

agency and to subject their injunction requests to

“stringent” scrutiny. Pet. Br. 3.

The Court’s decision in Hecht teaches a different

lesson. As shown supra pp. 13-14, the Hecht Court,

after ruling against the agency on the particular facts

of that case, went out of its way to emphasize that the

16

interdependence, not independence, of court and

agency should be the touchstone in statutory

injunction cases. Hecht, 321 U.S. at 330 (“court and

agency are not to be regarded as wholly independent

and unrelated instrumentalities of justice, each

acting in the performance of its prescribed statutory

duty without regard to the appropriate function of the

other in securing the plainly indicated objects of the

statute”). Hecht likewise refutes Petitioner’s

suggestion that courts are to apply “stringent” criteria

to injunctive relief requests sought by agencies. In

Hecht, only the most lax criteria would have tolerated

the requested injunction, a point the Court drove

home by stating, “We do not mean to imply that courts

should administer [the injunctive-relief provision of

the statute] grudgingly.” 321 U.S. at 330. See also

Dobbs & Roberts, Law of Remedies, supra, at 184

(“the [Hecht] court did not deny an injunction because

it balanced equities and hardships, but only because

there was no threat of future misconduct to enjoin”).

Third, contrary to Petitioner’s assertion (Br. 4)

that it requires harking back to “earlier, deferencefriendly eras” to honor the role of public agencies as

representatives of the public interest, both Winter and

Nken are of recent vintage. And in both cases, the

Court admonished trial courts for giving inadequate

respect to the governmental litigant: in Winter, the

Department of the Navy; and in Nken, the

Department of Justice and federal immigration

authorities. In neither case was Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984), even mentioned. Nor could Chevron have

been an implicit basis for the Court’s reasoning. In

Winter, the Court faulted the trial court for failing to

accord deference to the Government’s expertise as

17

reflected in its litigation declarations, a type of

deference not implicated by Chevron. In Nken, the

Court considered standards for granting stays

pending judicial review in a broad class of

administrative review cases, including those

involving the application to contested facts of an

uncontested legal standard, another circumstance in

which Chevron is not implicated.

Fourth, equity principles refute Petitioner’s

suggestion (Br. 6, 41) that a temporary injunction,

once granted, never can be dissolved or modified

based on undue delay by a government agency or

other changed circumstances that occur before

adjudication of the merits.

The “flexibility” that has long distinguished courts

of equity, see supra p. 2, includes the flexibility to

modify a temporary injunction to avoid hardship to

the party awaiting a merits determination for an

undue period, as well as the flexibility to set a specific

time limit on the duration of the temporary injunction

in the initial provisional order itself. See Kaynard v.

Mego Corp., 633 F.2d 1026, 1035 (2d Cir. 1980)

(Friendly, J.) (modifying a 10(j) injunction such that

it would expire if the administrative law judge failed

to issue a decision within a stated time, and stating

that district courts can, consistent with their

equitable discretion, insert specific time limits in

their initial temporary injunction orders where

appropriate). See also Gergen et al., 112 Colum. L.

Rev. at 206, 227 (equity practice includes “safety

valves” to prevent opportunism by both sides in

litigation). Regulations by the NLRB that ensure

district courts are notified of adverse administrative

law judge decisions during the pendency of temporary

18

§ 10(j) or § 10(l) injunctions, see Govt. Br. 43, facilitate

courts’ ability to exercise their equitable discretion in

this regard.

E. The Government’s submission in this case is

fully consistent with the principles traditionally

applied to equitable cases filed by public agencies.

There is no need to restate the Government’s own

comprehensive explanation as to why this so, but two

points merit particular attention.

First, there can be no doubt that a Regional

Director of the National Labor Relations Board

(NLRB), when seeking a temporary injunction after

having secured the approval of the NLRB itself as

§ 10(j) contemplates, is a representative of the public

interest, just as were the Department of the Navy in

Winter and the Department of Justice and the

immigration authorities in Nken. Indeed, on the same

day as this Court decided Hecht, it also handed down

its decision in J.I. Case Co. v. NLRB, where it

reaffirmed the NLRB’s role “as a public body, charged

in the public interest with the duty of preventing

unfair labor practices.” 321 U.S. 332 (1944) (quoting

National Licorice Co. v. NLRB, 309 U.S. 350, 364

(1940)).

Second, the unique allocation of provisional and

final decisionmaking authority that Congress adopted

when it amended the NLRA to include § 10(j) and

§ 10(l) is a legislative policy decision of the kind that

courts of equity are permitted, and, indeed under

Hecht and its progeny, required to take account of in

carrying out their responsibilities under the statute.

In the original NLRA, Congress vested the

responsibility for adjudicating unfair labor practice

19

cases in the first instance with the NLRB, “subject to

limited judicial review” in the federal courts of appeal.

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194

(1941). In the statutory amendments that included

§§ 10(j) and 10(l), Congress preserved the role of the

Board as primary adjudicator and preserved as well a

limited judicial-review role for the courts of appeal.

Congress then assigned a carefully circumscribed and

delineated role for the district courts, which is to

evaluate claims for temporary relief without

preempting the role of either the NLRB or the courts

of appeal in adjudicating the actual merits. In the

more typical equity case, if the district court judge

pronounces too definitively on the merits at an

interlocutory stage of the proceedings, there is no risk

of invading the province reserved to other statutorily

assigned actors because the judge is simply predicting

her own decision. But in a § 10(j) case, the task of the

district judge is more delicate.

As the Government persuasively explains,

traditional equity, as practiced in cases filed by public

agencies, is sufficiently flexible to allow district courts

to perform that delicate task either through the twopart inquiry applied by the court below or through a

four-part inquiry that—unlike the artificially cabined

inquiry advocated by Petitioner—shows appropriate

attentiveness to the underlying statutory policy in

general and to the statutory role of the agency as

representative of the public interest in particular. See

Resp. Br. 34-39.

20

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

CAPRICE L. ROBERTS

Louisiana State

University

Paul M. Hebert Law

Center

1 East Campus Drive

Baton Rouge, LA 70803

DOUG RENDLEMAN,

Emeritus

Washington & Lee

University School of Law

1 Denny Circle

Lexington, VA 24450

LEON DAYAN

(Counsel of Record)

RICHARD F. GRIFFIN,

JR.

Bredhoff & Kaiser PLLC

805 15th Street NW

Suite 1000

Washington, DC 20005

(202) 842-2600

ldayan@bredhoff.com

Counsel to Amici Curiae

March 29, 2024