Amicus Curiae Brief — Epic Sys. Corp. v. Lewis, 138 S. Ct. 42 (2017) (No. 16-285)

pr Stee ee TTY

AND

BRIEFS No. 16-285

In the

Supreme Court of the Anited States

—+

EPIC SYSTEMS CORPORATION,

Petitioner,

V.

JACOB LEWIS,

Respondent.

>

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

—+

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

+.

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

E-mail: DLaFetra@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

i

QUESTION PRESENTED

Whether an agreement that requires an employer

and an employee to resolve employment-related

disputes through individual arbitration, and waive

class and collective proceedings, is enforceable under

the Federal Arbitration Act, notwithstanding the

provisions of the National Labor Relations Act.

li

TABLE OF CONTENTS

Page

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

yy) *F Se gis, ° _.. Gere ill

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

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION .... 2

REASONS FOR GRANTING THE WRIT ........ 3

|. THERE IS AN IRRECONCILABLE

AND GROWING CONFLICT

AMONG THE CIRCUITS ................ 3

Il. THE QUESTION PRESENTED IS OF

NATIONAL IMPORTANCE AS TO

THE FREEDOM OF CONTRACT IN

THE EMPLOYMENT CONTEXT .......... 5

A. This Court Should Grant Review To

Affirm That Aggregate Litigation Is

a Matter of Procedure, Not Substance ... 5

B. This Case Arises in the Nationally

Important Context of Circuit Court

Deference to Agency Nonacquiescence ... 8

CRO MES vi pe bc ion déeneet Veneer 13

ili

TABLE OF AUTHORITIES

Page

Cases

14 Penn Plaza LLC v. Pyett,

ec eta becees 6

20/20 Communications, Inc. and Charlie Smith,

2016 WL 4651564 (N.L.R.B. Div. of Judges

ee cd ac eta e bs beceences 5

ABM Indus., Inc. v. Castro,

No. 15-1427 (pending)....................-- 1

Am. Express Co. v. Italian Colors Restaurant,

Ee 3-4, 6

AT&T Mobility LLC v. Concepcion,

cn cece cece cscs 1, 3-4

Atchison, Topeka and Santa Fe Ry. Co. v. Peria,

44 F.3d 437 (7th Cir. 1994) (en banc)......... 11

Boys Mkts., Inc. v. Retail Clerks Union, Local 770,

es cc tcc cece caceees 8

Cellular Sales of Mo., LLC v. NLRB,

ee 3

Circuit City Stores, Inc. v. Adams,

SE 6

D.R. Horton, Inc. v. National Labor Relations

Board, 737 F.3d 344 (5th Cir. 2013) ...... 1, 3-4

Dean Witter Reynolds, Inc. v. Byrd,

EE 5-6

Deposit Guar. Nat'l Bank v. Roper,

re ce beeeeescere 6

iv

TABLE OF AUTHORITIES—Continued

Page

DIRECTV, Inc. v. Imburgia,

UO, MI I cnc cnc cen ccccccccvat 1

Gilmer v. Interstate/Johnson Lane Corp.,

i aw ab ees 6-7

H.K,. Porter Co., Inc. v. NLRB,

a ee ced ck wee nes 5

Insurance Agents’ Int'l Union,

NE 9

Iskanian v. CLS Transp. Los Angeles, LLC,

59 Cal. 4th 348 (2014), cert. denied,

ee Gy I og cca ck ccedeccbesse 1,4

Johnson v. U.S. R.R. Retirement Bd.,

969 F.2d 1082 (D.C. Cir. 1992) ........... 10-11

Leal-Rodriguez v. INS,

990 F.2d 939 (7th Cir. 1993)................ 10

Lewis v. Epic Systems Corporation,

823 F.3d 1147 (7th Cir. 2016).............. 2,4

Manor West, Inc.,

eee I DIED oc ccbccceccctecceses 5

Mastro Plastics Corp. v. NLRB,

RR le RE en ee ee 8

Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) ... 7

Morris v. Ernst & Young, LLP, _—F.3d___,

2016 WL 4433080 (9th Cir. Aug. 22, 2016),

petition for writ of certiorari filed

Sept. 8, 2016 (No. 16-300)................ 4, 10

Vv

TABLE OF AUTHORITIES—Continued

Page

Murphy Oil USA v. NLRB,

808 F.3d 1013 (Sth Cir. 2015).............. 3,9

National Labor Relations Board v. Murphy Oi/

USA, Inc., (petition filed Sept. 9, 2016)

ep ae Si REE ae a anes 10

Nat'l Envtl. Dev. Ass’n’s Clean Air Project v. EPA,

752 F.3d 999 (D.C. Cir. 2014) ............ 11-12

Olin Corp.,

er CD... Cccéaceoceeceobes 7

Oxford Health Plans LLC v. Sutter,

De se ce iwe eae 1

Rosendo-Ramirez v. INS,

32 F.3d 1085 (7th Cir. 1994) .............. 9-10

Ruppert v. Bowen,

Gp bas. (os Se ae 11

S. S.S. Co. v. NLRB,

RE A ee TC ee 13

Sheet Metal Workers’ Intl Ass'n, Local 15, AF'L-

CIO v. NLRB, 491 F.3d 429 (D.C. Cir. 2007) .... 9

Spielberg Mfg. Co.,

Se ee PED ov vc cc cece ecseecs 7

Summit Petroleum Corp. v. EPA,

690 F.3d 733 (6th Cir. 2012)............. 11-12

Sutherland v. Ernst & Young LLP,

726 F.3d 300 Gad Cir. 3013) .... 2... cece eeees 4

Tallman v. Eighth Jud. Dist. Ct.,

ee I ss wc ccececdeeesesss 4

vi

TABLE OF AUTHORITIES—Continued

Page

Teamsters v. Lucas Flour Co.,

nc ES a Bede, RR 8

Textile Workers Union of Am. v. Lincoln Mills of

Ss Ee ee MD 6. 50 6 ou ube bse eer 8

Walthour v. Chipio Windshield Repair, LLC,

745 F.3d 1326 (11th Cir. 2014)............... 6

Statutes

ED ot eon tee te eeu awa ten een 5

a ee ee ee ee ean 5

a i écauese ba eewal 2

Rules

EE En aoe ae ee ee ae a 6

a oe. be bere be sae ae eh eee ae 1

I ce a a Le ok 1

ai wai ae 1

Miscellaneous

Amendments to Regional Consistency

Regulations, 81 F.R. 51102-01,

2016 WL 4089445 (Aug. 3, 2016) ............ 12

Coene, Dan T., The Constitutional Case Against

Intracircuit Nonacquiescence,

75 Minn. L. Rev. 1339 (1991) ............... 12

vil

TABLE OF AUTHORITIES—Continued

Page

Estreicher, Samuel & Revesz, Richard L.,

Nonacquiescence by Federal Administrative

Agencies, 98 Yale L.J. 679 (1989) ........... 8-9

Lopatka, Kenneth T., A Critical Perspective

on the Interplay Between Our Federal

Labor and Arbitration Laws,

ee ee EE bn ok 6 Oe ac eee sede 7

]

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief

amicus curiae in support of Petitioner, Epic Systems,

Inc.' Founded over 40 years ago, PLF litigates matters

affecting the public interest at all levels of state and

federal court, representing the views of thousands of

supporters nationwide. Among other things, PLF’s

Free Enterprise Project defends the freedom of

contract, including the right of parties to agree by

contract to the process for resolving disputes that

might arise between them. To that end, PLF has

participated as amicus curiae in many important cases

involving contractual arbitration and class actions in

both the consumer and employment context. See, e.g.,

ABM Indus., Inc. v. Castro, No. 15-1427 (pending);

DIRECTY, Inc. v. Imburgia, 136 S. Ct. 463 (2015);

Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064

(2013); AT&T Mobility LLC v. Concepcion, 563 U.S.

333 (2011); D.R. Horton, Inc. v. National Labor

Relations Board, 737 F.3d 344 (5th Cir. 2013); and

Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th

348 (2014), cert. denied, 135 S. Ct. 1155 (2015).

‘ Pursuant to this Court’s Rule 37.2, all parties have consented to

the filing of this brief. Counsel of record for all parties received

notice at least 10 days prior to the due date of the Amicus Curiae’s

intention to file this brief. Letters evidencing such consent have

been filed with the Clerk of the Court.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION

In April, 2014, Jacob Lewis, a technical writer for

Epic Systems, agreed to arbitrate wage-and-hour

claims on an individual! basis, specifically waiving “the

right to participate in or receive money or any other

relief from any class, collective, or representative

proceeding.” Lewis v. Epic Systems Corporation, 823

F.3d 1147, 1151 (7th Cir. 2016). In February, 2015,

Lewis sued Epic in federal district court for alleged

violations of the Fair Labor Standards Act. He sued on

behalf of himself and the other technical writers,

alleging they were misclassified as exempt employees

and thereby deprived of overtime pay. Epic moved to

dismiss based on the arbitration agreement and class-

action waiver. Id.

The district court agreed with Lewis that

mandatory individual arbitration violated the

employees’ right under the National Labor Relations

Act (NLRA) to engage in concerted activities for

mutual aid and protection. See 29 U.S.C. § 157. The

Seventh Circuit affirmed on the grounds that the

“concerted activities” statute controls and the Federal

Arbitration Act (FAA) simply does not apply and

therefore creates no conflict with the NLRA. Lewis,

823 F.3d at 1157.

This Court should grant the petition for a writ of

certiorari because: (1) the decision below deepens an

acknowledged and fracturing split among the circuit

courts, both as to the interpretation of the NLRA, id. at

1155, and as to its holding that the FAA does not apply

to mandatory arbitration within the employment

context, id. at 1157-58, and (2) the Seventh Circuit

opinion affects more businesses than those present

3

within its geographical boundaries because it

reinforces the National Labor Relations Board’s policy

of mnonacquiescence, which impels it to bring

enforcement actions against companies nationwide on

this issue, even in circuits that respect class-action

waivers. See Murphy Oil USA v. NLRB, 808 F.3d

1013, 1018 (5th Cir. 2015).

The petition for a writ of certiorari should be

granted.

REASONS FOR GRANTING THE WRIT

I

THERE IS AN

IRRECONCILABLE AND GROWING

CONFLICT AMONG THE CIRCUITS

Until just six months ago, every one of the federal

circuit courts and state supreme courts that considered

the effect of the NLRA’s “concerted activities” provision

on FAA-protected arbitration contracts came to the

same conclusion: This Court’s decisions in AT&T

Mobility v. Concepcion, 563 U.S. at 346, and Am.

Express Co. v. Italian Colors Restaurant, 133 S. Ct.

2304, 2310 (2013), which applied both the FAA and

federal substantive law of arbitration, affirmed the

validity of class action waivers in the employment

context. See D.R. Horton, 737 F.3d at 360 (“[T}here is

no basis on which to find that the text of the NLRA

supports a congressional command to override the

FAA.”); Cellular Sales of Mo., LLC v. NLRB, 824 F.3d

772, 776 (8th Cir. 2016) (“Cellular Sales did not violate

section 8(a){1) [of the NLRA] by requiring its

employees to enter into an arbitration agreement that

included a waiver of class or collective actions in all

forums to resolve employment-related disputes.”);

4

Sutherland v. Ernst & Young LLP, 726 F.3d 290, 297-

98 & n.8 (2d Cir. 2013) (neither the Fair Labor

Standards Act nor the NLRA overrides the FAA’s

enforcement of arbitration agreements); Jskanian v.

CLS Transp. L.A., LLC, 59 Cal. 4th at 372 (“[N]leither

the NLRA’s text nor its legislative history contains a

congressional command prohibiting such waivers.”);

Taliman v. Eighth Jud. Dist. Ct., 359 P.3d 113, 123

(Nev. 2015) (“[I]nvalidation of class arbitration waivers

cannot be reconciled with the FAA as authoritatively

interpreted by the Supreme Court in Concepcion and

Italian Colors.”).

Since then, however, both the Seventh and Ninth

Circuit courts have held to the contrary—invalidating

otherwise valid arbitration agreements solely because

they allegedly infringe upon employees’ rights to

engage in concerted activities under the NLRA. See

Lewis, 823 F.3d 1147; Morris v. Ernst & Young, LLP,

_. F.3d __, 2016 WL 4433080 (9th Cir. Aug. 22,

2016), petition for writ of certiorari filed Sept. 8, 2016

(No. 16-300).” In part, these decisions were based on a

deferential adoption of the National Labor Relations

Board’s position that arbitration agreements cannot

require an employee to forego class resolution of work-

related claims.

The effect of this split in the circuits is

particularly confusing because the NLRB takes the

position—despite the conflict in the circuits—that its

own agency decision in D.R. Horton “remains

controlling Board law” nationwide until such time as

* Because the question presented in Ernst & Young’s petition is

equivalent to that presented in Epic Systems’ petition, amicus

Pacific Legal Foundation urges this Court to grant certiorari in

both cases.

5

this Court overturns it. See 20/20 Communications,

Inc. and Charlie Smith, 2016 WL 4651564 (N.L.R.B.

Div. of Judges Sept. 6, 2016) (citing Manor West, Inc.,

311 NLRB 655, 667 n.43 (1993)). This matter must be

resolved.

Il

THE QUESTION PRESENTED

IS OF NATIONAL IMPORTANCE AS TO

THE FREEDOM OF CONTRACT IN THE

EMPLOYMENT CONTEXT

While federal law places some substantive limits

on the ability of adults to freely contract to arrange

their affairs, courts generally respect people’s rights to

determine the procedures by which they will resolve

their disputes. See H.K. Porter Co., Inc. v. NLRB, 397

U.S. 99, 108 (1970) (“One of the fundamental policies”

underlying the NLRA is “freedom of contract.”). A key

issue presented by this case is whether Section 7

creates a substantive, non-waivable right to pursue

claims unrelated to the NLRA on a class basis.

A. This Court Should Grant Review To

Affirm That Aggregate Litigation Is a

Matter of Procedure, Not Substance

The FAA provides that arbitration agreements are

“valid, irrevocable and enforceable, save upon such

grounds as exist at law or in equity for the revocation

of any contract.” 9 U.S.C. § 2. The Act also “mandates

that district courts ‘shall’ direct the parties to proceed

to arbitration on issues as to which an arbitration

agreement has been signed.” Dean Witter Reynolds,

Inc. v. Byrd, 470 U.S. 213, 218 (1985) (citing 9 U.S.C.

§§ 3, 4). Accordingly, “agreements to arbitrate must be

enforced, absent a ground for revocation of the

6

contractual agreement.” Jd. The FAA was designed

“to overrule the judiciary’s longstanding refusal to

enforce agreements to arbitrate.” Jd. at 219-20. In this

case, itis the NLRB’s hostility to individual arbitration

that has only recently enjoyed refuge in two circuit

courts.

Current law considers collective litigation,

however styled, to be a matter of procedure, not a

substantive right. This Court held in /talian Colors

that the antitrust laws and Federal Rule of Civil

Procedure 23 do not counteract the procedural choices

made by parties in arbitration contracts. 133 S. Ct. at

2310. See also Gilmer v. Intersiate/Johnson Lane

Corp., 500 U.S. 20, 32 (1991); Deposit Guar. Natl Bank

v. Roper, 445 U.S. 326, 332 (1980) (“[T]he right of a

litigant to employ Rule 23 is a procedural right only,

ancillary to the litigation of substantive claims.”);

Walthour v. Chipio Windshield Repair, LLC, 745 F.3d

1326, 1336 (11th Cir. 2014) (“Congress’s decision to

specifically include the procedural right to a collective

action in the FLSA does not somehow transform that

procedural right into a substantive right.”).

This Court held in 14 Penn Plaza LLC v. Pyett,

556 U.S. 247, 269 (2009), that “the recognition that

arbitration procedures are more streamlined than

federal litigation is not a basis for finding the forum

somehow inadequate; the relative informality of

arbitration is one of the chief reasons that parties

select arbitration.” See also Circuit City Stores, Inc. v.

Adams, 532 U.S. 105, 123 (2001) (“The Court has been

quite specific in holding that arbitration agreements

can be enforced under the FAA without contravening

the policies of congressional enactments giving

employees specific protection against discrimination

7

prohibited by federal law.”); Gilmer, 500 U.S. at 26

(“[Bly agreeing to arbitrate a statutory claim, a party

does not forgo the substantive rights afforded by the

statute; it only submits to their resolution in an

arbitral, rather than a judicial, forum.”). In short,

plaintiffs do not give up their substantive rights under

the federal laws by being required to arbitrate their

dispute. Mitsubishi Motors Corp. uv. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). By

agreeing to arbitrate disputes, plaintiffs agree to

substitute one forum for another; they “trade the

procedures and opportunity for review of the courtroom

for the simplicity, informality, and expedition of

arbitration.” Id.

Moreover, the Board’s position, accepted by the

court below, that an employee’s agreement to pursue

employment disputes on an individual basis violates a

core purpose of the NLRA, cannot be reconciled with

the Board’s acceptance of arbitration encompassed

within collective bargaining agreements. See, e.g., Olin

Corp., 268 N.L.R.B. 573, 577 (1984); Spielberg Mfg.

Co., 112 N.L.R.B. 1080, 1082 (1955)“ (After collectively

bargained-for arbitration, Board defers to arbitrators’

awards, even when it would have decided the

underlying statutory issue differently.); Kenneth T.

Lopatka, A Critical Perspective on the Interplay

Between Our Federal Labor and Arbitration Laws, 63

S.C. L. Rev. 43, 48 (2011). The Board’s differing

approach to arbitration when agreed to by unions

versus individuals cannot stand. This Court has

routinely allowed and enforced waivers of the right to

strike, which waive employees’ rights to engage in

concerted activity, where the “no-strike” clause was

part of a freely negotiated collective bargaining

agreement. Textile Workers Union of Am. v. Lincoln

8

Mills of Ala., 353 U.S. 448, 455 (1957) (“Plainly the

agreement to arbitrate grievance disputes is the quid

pro quo for an agreement not to strike.”); Boys Mkts.,

Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235,

238-39 (1970) (exclusive bargaining representative

may waive Section 7 rights of the employees it

represents in exchange for other concessions); Mastro

Plastics Corp. v. NLRB, 350 U.S. 270, 280-83 (1956)

(same). This Court even implied an agreement not to

strike where a collective bargaining agreement

contains an arbitration provision. Teamsters v. Lucas

Flour Co., 369 U.S. 95, 104-05 (1962).

While this Court has expressly held arbitration to

be procedural in nature in many contexts, it has not

yet done so in the context of individual workplace

disputes that arguably implicate provisions of the

NLRA.’ The Court should grant the petition in this

case to ensure that employees and employers retain

the right to arbitrate their workplace disputes.

B. This Case Arises in the

Nationally Important Context

of Circuit Court Deference to

Agency Nonacquiescence

Nonacquiescence refers to the “selective refusal of

administrative agencies to conduct their internal

proceedings consistently with adverse rulings of the

courts of appeals.” Samuel Estreicher & Richard L.

Revesz, Nonacquiescence by Federal Administra’ ‘ve

Agencies, 98 Yale L.J. 679, 681 (1989). The NLRB,

“more than most [agencies], has openly asserted the

authority to decline to acquiesce.” Jd. at 706. The

* Pacific Legal Foundation disagrees that Lewis’s claims in this

case implicate the “concerted action” provision of the NLRA.

9

Board is committed to pressing its own view of the law

until the Board itself or this Court overrules it; it

claims that piecemeal acceptance of particular circuits’

interpretations of the law would frustrate its

development of a national labor policy. Jd. at 706

(citing Insurance Agents’ Int'l Union, 119 N.L.R.B. 768,

773 (1957)). The Board’s sole nod to the rule of law

established by federal courts is with regard to an

appellate court’s “treatment of a particular case on

remand.” Jd. at 706 n.148.

Decisions by federal courts hold no sway over the

NLRB and its administrative law judges (ALJs) in

light of the NLRB’s “policy of non-acquiescence” that

instructs ALJs to follow Board precedent rather than

the precedent of courts of appeals. See, e.g., Murphy

Oil USA v. NLRB, 808 F.3d 1013, 1018 (5th Cir. 2015)

(“We do not celebrate the Board’s failure to follow our

D.R. Horton reasoning, but neither do we condemn its

nonacquiescence.”); Sheet Metal Workers’ Int'l Ass'n,

Local 15, AFL-CIO v. NLRB, 491 F.3d 429, 435 (D.C.

Cir. 2007) (NLRB refuses even to recognize the

existence of circuit court decisions contrary to its own

policies.).

Other agencies may invoke a_ policy of

nonacquiescence as well. For example, like the NLRA,

the Immigration and Naturalization Act provides for

appellate review in such a way that Immigration

Judges cannot know for certain which court of appeals

will review their decisions. Rosendo-Ramirez v. INS,

32 F.3d 1085, 1093-94 (7th Cir. 1994). In Rosendo-

Ramirez, the Immigration and Naturalization Service

(INS), urged the Seventh Circuit to apply the law of

the Fifth Circuit, which adopted the INS’s position,

while disregarding the Seventh Circuit’s own decision

10

in Leal-Rodriguez v. INS, 990 F.2d 939 (7th Cir. 1993),

which rejected the INS’s position. The Rosendo-

Ramirez court interpreted INS’s argument as “an

inartful (or maybe in fact cleverly disguised) attempt

at nonacquiescence to [the] rule in Leal-Rodriguez.”

Id. at 1083. The court declined to adopt the INS’s

proposal.

District of Columbia Circuit Chief Judge Abner

Mikva decried the United States Railroad Retirement

Board’s policy of nonacquiescence that led it to deny

benefits to the spouses and widows of railroad workers

even after multiple appellate courts held that denial to

be unlawful. Johnson v. U.S. R.R. Retirement Bd., 969

F.2d 1082, 1083 (D.C. Cir. 1992) (“In a bold challenge

to judicial authority, the United States Railroad

Retirement Board argues that it is free, when it

chooses, to ignore the decisions of United States courts

of appeals.”). As in this case, the Retirement Board

declined to petition this Court for review of adverse

circuit court rulings while continuing to apply the

rejected interpretation of its controlling statute. Jd. at

1087. See also id. at 1092 (“When an agency honestly

believes a circuit court has misinterpreted the law,

there are two places it can go to correct the error:

Congress or the Supreme Court. The Railroad

Retiremeat Board has done neither.”).* Also similar to

this case, the Board—and here, the decision below (Pet.

App. 7a)}—applied Chevron deference to the agency

interpretation. The Johnson court held that Chevron

* Only subsequent to the filing of the petition in this case and in

the Ernst & Young case did the NLRB file a petition for writ of

certiorari seeking review of the Fifth Circuit's ruling adverse to its

position. National Labor Relations Board v. Murphy Oil USA,

Inc., No. 16-307 (petition filed Sept. 9, 2016).

11

deference does not apply because the Board was “not

interpreting its governing statute alone, but rather the

relationship between” the governing statute and

another federal statute (the Social Security Act). Jd. at

1088. Moreover, a policy of nonacquiescence creates an

inherently non-uniform application of the law because

it “results in very different treatment for those who

seek and who do not seek judicial review.” Jd. at 1092.

See also Ruppert v. Bowen, 871 F.2d 1172, 1178 (2d

Cir. 1989) (noting the Social Security Administration’s

“history of uncooperativeness” in its failure to follow

circuit court decisions); cf. Atchison, Topeka and Santa

Fe Ry. Co. v. Pefia, 44 F.3d 437, 446 (7th Cir. 1994) (en

banc) (without Supreme Court review,

“nonacquiescence may yield entrenched differences

among the circuits”) (Easterbrook, J., concurring).

The Environmental Protection Agency (EPA) also

issued a directive adhering to a judicially-invalidated

interpretation of the Clean Air Act. Natl Envitl. Dev.

Ass'n’s Clean Air Project v. EPA, 752 F.3d 999 (D.C.

Cir. 2014). The case involved an EPA regulation

broadly defining what constitutes a “major” source of

pollution. /d. at 1002. The Sixth Circuit, in Summit

Petroleum Corp. v. EPA, 690 F.3d 733, 740-41 (6th Cir.

2012), held that the EPA’s definition was “arbitrary

and capricious” and then denied the EPA’s petition for

rehearing. The EPA continued to apply its own

definition everywhere outside the Sixth Circuit. Nat7

Envtl. Dev. Ass’n’s Clean Air Project, 752 F.3d at 1003.

The D.C. Circuit found “no merit in EPA’s arguments”

and struck down the directive to ignore Summit. Id. at

1004, 1011 (“The doctrine of intercircuit

nonaquiescence does not allow EPA to ignore the plain

language of its own regulations” that require

uniformity.) See also id. at 1010 (EPA could have

12

petitioned this Court to review Summit but failed to do

so). EPA responded to the D.C. Circuit opinion by

amending its regulations to provide an exception to the

uniformity requirement and “fully accommodate

intercircuit nonacquiescence.” Amendments to Regional

Consistency Regulations, 81 F.R.51102-01, 51103, 2016

WL 4089445 (Aug. 3, 2016).

By granting the petition in this case, this Court

need not determine whether agency policies of

nonacquiescence are constitutional in all their

varieties. See Dan T. Coenen, The Constitutional Case

Against Intracircuit Nonacquiescence, 75 Minn. L. Rev.

1339, 1351 (1991) (intracircuit nonacquiescence

vulnerable to separation of powers, due process, and

equal protection challenges). However, the NLRB’s

policy of nmonmacquiescence provides an important

context to the question presented and this Court’s

consideration of that context will guide circuit courts

and administrative agencies when other agency-court

conflicts arise.

13

5 ae

CONCLUSION

The National Labor Relations Board “has not been

commissioned to effectuate the policies of the Labor

Relations Act so single-mindedly that it may wholly

ignore other and equally important Congressional

objectives.” S. S.S. Co. v. NLRB, 316 U.S. 31, 47

(1942). Only this Court can settle the important

question of whether the NLRA’s protection of

“concerted action” eliminates the freedom of employers

and employees to contract for arbitral resolution of

workplace disputes, as guaranteed by the Federal

Arbitration Act.

The petition for a writ of certiorari should be

granted.

DATED: September, 2016.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

E-mail: DLaFetra@pacificlegal. org

Counsel for Amicus Curiae Pacific Legal Foundation