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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0699%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0699%3A11. Public record. Not legal advice.