Reply Brief — PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 1307 (2019) (No. 17-1705)

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No. 17-1706

IN THE

Supreme Court of the United States

PDR NetWork, LLC, et al.,

Petitioners,

CARLTON & HARRIS CHIROPRACTIC, INC.,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

PETITIONERS’ REPLY

JEFFREY N. ROSENTHAL CARTER G. PHILLIPS *

BLANK ROME LLP KWAKU A. AKOWUAH

130 N. 18th Street DANIEL J. FEITH

Philadelphia, PA 19103 Kurt A. JOHNSON

(215) 569-5553 SIDLEY AUSTIN LLP

1501 K Street, N.W.

ANA TAGVORYAN Washington, D.C. 20005

BLANK ROME LLP (202) 736-8000

2029 Century Park East cphillips@sidley.com

6th Floor

Los Angeles, CA 90067

(424) 239-3400

Counsel for Petitioners

March 11, 2019 * Counsel of Record

OE RR AR TT

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................-c-csseeeeeees

TT esicininsittiinctocigtitansinisonitanenndantiocs

THE HOBBS ACT DOES NOT PRECLUDE

TCPA DEFENDANTS FROM OBTAINING

JUDICIAL REVIEW OF FCC LEGAL IN-

REN He

A. Text and Context Require Construing the

Hobbs Act More Narrowly than Respond-

ent and the Government's Reading...........

. The Hobbs Act Did Not Provide a Prior,

Adequate, and Exclusive Opportunity for

Judicial Review of the 2006 Order ............

Respondent and the Government's Posi-

tion Cannot Be Squared with Other

Agency-Review Statutes ............................

Constitutional Avoidance Principles Favor

i i icincetienessetassconece

THE FCCS INTERPRETATION OF

“UNSOLICITED ADVERTISEMENT” IS A

NON-BINDING INTERPRETIVE RULE ......

SEINE siaidtnahinslemstnaidiccdnpdbedeinsnicnnabenamenneces

(i)

TABLE OF AUTHORITIES

CASES Page

Adamo Wrecking Co. v. United States, 434

Rs I nin cinssicianiniintabieninanddaiintimhentens 16

Biggerstaff v. FCC, 511 F.3d 178 (D.C. Cir.

EAE PPA a es Cre ee eo CE 14

Bradley v. City of Richmond, 227 U.S. 477

GERI ctn-cccipcccinsactiaienatinidiientenittabatibtianddidiictsetnieiinens 13, 14

Christopher v. SmithKline Beecham Corp.,

og BR 11

City of Bos. Delegation v. Fed. Energy Regu-

latory Comm’n, 897 F.3d 241 (D.C. Cir.

Ri hieiectatiheniiaiidelh atic nadie narteel aintialatieaptnns 14

Clark v. Martinez, 543 U.S. 371 (2005) ........ 19

Columbia Broad. Sys., Inc. v. United States,

ee I acti tersccnitarnenniniibiinineien 20, 21

Direct Mktg. Ass’n v. Brohl, 135 S. Ct. 1124

SIE iccrihieenieth deisdeiesianchiCanieaceeniipiadiitindhadaeeamseemnaiae 5

Duncan v. Walker, 533 U.S. 167 (2001)........ 5

FCC v. ITT World Commce'ns, Inc., 466 U.S.

Niclas ricsncciddeplintncniabededeaaiaedaniinats 9

Functional Music, Inc. v. FCC, 274 F.2d 543

Eee 10, 13

Gage v. U.S. Atomic Energy Comm'n, 479

F.2d 1214 (D.C. Cir. 1973)................20-.----- 10

Gen. Dynamics Land Sys., Inc. v. Cline, 540

REE Ae 3

Gustafson v. Alloyd Co., 513 US. 561

ERR eS EO en 4

Perez v. Mortg. Bankers Ass'n, 135 S. Ct.

a ae ea 21

Physicians Healthsource, Inc. v. Boehringer

Ingelheim Pharm., Inc., 847 F.3d 92 (2d

I ai iiciysitncalisipatndeiassackaiiideineatpibdidigias 15

TABLE OF AUTHORITIES—continued

Page

Port of Bos. Marine Terminal Ass'n v.

Rederiaktiebolaget Transatlantic, 400 U.S.

stink cintsiaiicisqrnieniieditnnaipiinentensetnin 9, 10, 15

Susan B. Anthony List v. Driehaus, 573 U.S.

IIIT cis snrechsntiacdiehdliiniaidiiatdhaipasbitiiibatniaiiaiidtiees 14

United States v. O'Hagan, 521 US. 642

A ES Sen ae 18

United States v. Ruzicka, 329 US. 287

[I ctchtaaitneiicindpneniibditiinesiecatdidaitaitaiadiiteninaddlidiata 9

United States v. Szabo, 760 F.3d 997 (9th

i caiinaainintiintiincinnasiahiicptesiasitanatialintmiesinneds 15

US W. Commce’'ns, Inc. v. Hamilton, 224 F.3d

A 21

Venner v. Mich. Cent. R.R., 271 U.S. 127

ESN Ee ee ee 9

Whitney Nat Bank v. Bank of New Orleans

& Tr. Co., 379 U.S. 411 (1965)................... 18

Woods v. Hills, 334 U.S. 210 (1948).............. 6

Yakus v. United States, 321 US. 414

RR nae er 6, 7, 8, 13

Yates v. United States, 135 S. Ct. 1074

I sila tn acest tiie aeatlebiaalinglins 3

Yee v. City of Escondido, 503 U.S. 519

RL AE A ee 19, 20

STATUTES AND REGULATIONS

| RSE ne 1, 11

a 18

ee adi iccicirsicinicenctinictintendgoineioans 5

AEE aT 5, 21

SEER eae 10, 15

EE ANE ae nee a 7

TABLE OF AUTHORITIES—continued

Page

es Oe I icirerecesininnccinnncczonconnecs 1

ee I etiiereteccncenenerncentinntsescces 10

Emergency Price Control Act of 1942, Pub. L.

3) 2 2 7

Rules and Regulations Implementing the

Telephone Consumer Protection Act of

1991, 70 Fed. Reg. 75,070 (Dec. 19,

RRR Ni Ee nr ae ES PR 14

LEGISLATIVE HISTORY

H.R. Rep. No. 81-2122 (1950) ....................... s

S. Rep. No. 81-2618 (1950)............................ s

OTHER AUTHORITY

U.S. Dep’t of Justice, Attorney General’s

Manual on the Administrative Procedure

PELE IE A aE RS ae es 12, 13

INTRODUCTION

As the decision below recognized, there is “nothing

unique” about the Hobbs Act. Pet. App. 8a. Like many

agency review provisions, it establishes a “special stat-

utory review proceeding” that allows parties to directly

challenge agency action and obtain injunctive or de-

claratory relief against the government. 5 U.S.C.

§ 703. Such statutes are common in administrative

law and, as the Government concedes, “ordinarily” pre-

serve the right of defendants in enforcement proceed-

ings to judicial review of agency actions in that setting,

where their liberty or property rights are at risk. Govt.

24. Yet Respondent and the Government argue that

the Hobbs Act strips defendants of this right by requir-

ing enforcement courts to slavishly apply legal inter-

pretations announced in covered agency orders. Noth-

ing in the Hobbs Act compels that disturbing and

anomalous result.

First, the text of the Hobbs Act does not support it.

Respondent and the Government’s position depends on

reading the phrase “exclusive jurisdiction ... to deter-

mine the validity” in isolation, without regard to the

surrounding text, other provisions of the Hobbs Act, or

background principles of administrative law. All those

sources support the same conclusion: the Act does not

preclude judicial review of agency legal interpretations

when enforcement actions are brought in district

court. Congress knows how to expressly strip enforce-

ment courts of jurisdiction to consider legal questions,

e.g., 33 U.S.C. § 1369(b)(2), and did not use such lan-

guage in the Hobbs Act.

Second, Section 703 of the Administrative Procedure

Act (“APA”) entitles PDR to judicial review in this case

because the Hobbs Act provided no opportunity for re-

view that was both prior and adequate. In arguing oth-

erwise, the Government asserts a startlingly punitive

view of adequacy, under which the 60-day window to

obtain direct review of a generally applicable regula-

tion is deemed adequate for all parties, even those that

lacked standing to sue at the time. But obviously, par-

ties that lack standing do not have any opportunity to

sue—let alone an “adequate” one. In junk fax class ac-

tion litigation, and other settings, the Government’s

position would deprive countless defendants of the op-

portunity to obtain a judicial determination of what

the statute at the heart of their case means.

Finally, Respondent and the Government ignore the

unsettling implications of their estoppel-on-steroids

position—including the grave constitutional concerns

it would raise. One such implication is that their juris-

diction-stripping arguments apply equally to a host of

other statutes that likewise create an exclusive pro-

ceeding for direct review of agency action. If the FCC

gets its wish, other agencies will line up to seek the

same insulation from judicial review for their own le-

gal interpretations. But properly construed, the Hobbs

Act and other like statutes permit defendants facing

ruinous liability to assert the basic litigation defense

that they did not violate the law.

I. THE HOBBS ACT DOES NOT PRECLUDE

TCPA DEFENDANTS FROM OBTAINING

JUDICIAL REVIEW OF FCC LEGAL INTER-

PRETATIONS.

The Government attempts to recast this case as ad-

dressing “whether a litigant in a private district-court

lawsuit may collaterally attack the validity of [an or-

der] that could have been challenged under the Hobbs

Act when it was issued.” Govt. 1. But the question pre-

sented is far narrower. It asks only whether the Hobbs

Act strips district courts in TCPA proceedings of juris-

diction to consider a defendant's argument that the

law, properly construed, did not prohibit its conduct—

let alone create exposure to massive class-action dam-

ages.

As PDR’s opening brief demonstrated, the text and

context of the Hobbs Act and Section 703 show that the

Hobbs Act does no such thing. Respondent’s and the

Government's contrary arguments are unpersuasive.

A. Text and Context Require Construing

the Hobbs Act More Narrowly than Re-

spondent and the Government’s Reading.

The phrase at the heart of this case—-“determine the

validity”—appears twice in the Hobbs Act. The Gov-

ernment concedes that, in § 2349(a), a judgment “de-

termining the validity” of an order refers to a specific

type!] of relief,” Govt. 21-22, but contends “determine

the validity” has a different meaning in § 2342. There,

it supposedly refers to authority “to settle a question

or controversy about [an order's] validity,” without re-

gard to any specific form of judicial relief. Govt. 11 (in-

ternal quotation marks omitted). That is wrong.

1. The Government construes “determine the valid-

ity” based solely on dictionary definitions of each word.

Govt. 11-12. It then seeks to brush aside PDR’s argu-

ment that context suggests a narrower definition, by

asserting that the phrase is “unambiguous[].” Govt.

20. “Whether a statutory term is unambiguous,” how-

ever, “does not turn solely on dictionary definitions of

its component words.” Yates v. United States, 135 S.

Ct. 1074, 1081 (2015) (plurality opinion). “[S]tatutory

language must be read in context since a phrase gath-

ers meaning from the words around it.” Gen. Dynamics

Land Sys., Inc. v. Cline, 540 U.S. 581, 596 (2004) (al-

terations and internal quotation marks omitted).

Here, every contextual clue supports PDR’s position.

The Government concedes that § 2349 uses “determin-

ing the validity” to “specifly| the type[] of relief that a

court may enter.” Govt. 22. The natural inference is

that the phrase “determine the validity” has the same

import in § 2342, because the “normal rule of statutory

construction” is that “identical words used in different

parts of the same act are intended to have the same

meaning.” Gustafson v. Alloyd Co., 513 U.S. 561, 570

(1995) (internal quotation marks omitted).

The Government attempts to circumvent this inter-

pretive rule by contending that § 2349(a) describes the

“judicial relief that the Hobbs Act authorizes,” while

§ 2342 defines the judicial action the Act “forecloses.”

Govt. 21-22. Both provisions, however, are phrased as

affirmative grants of authority; neither expressly fore-

closes anything. Moreover, the contention that

§ 2349(a) authorizes judicial actions while § 2342 fore-

closes them sheds no light on whether the judicial ac-

tions discussed in the two provisions are the same or

different. Again, because Congress used the same

phrase twice, the “normal” interpretation is that Con-

gress meant in both places to refer to the same actions.

Gustafson, 513 U.S. at 570.

The Government also stresses that § 2342 “does not

contain the word ‘judgment,” Govt. 22, but never ex-

plains why that difference matters. If the word's ab-

sence in § 2342 affected the meaning of “determine the

validity,” it would also affect the meaning of the re-

maining verbs listed in the string. The Government,

however, never explains how the presence or absence

of “judgment” would, for example, affect the under-

standing of “ enjoin,” and no answer is apparent. In

both provisions, “enjoin” refers to injunctive relief that

may issue as part of a judgment.

The Government likewise makes no effort to connect

its construction of “determine the validity” to the ad-

joining terms “enjoin,” “set aside,” and “suspend.” 28

U.S.C. § 2342. In Direct Marketing Association v.

Brohl, this Court recognized that the words “enjoin’

and ‘suspend’ are terms of art in equity” that “refer to

different equitable remedies that restrict or stop offi-

cial action to varying degrees.” 135 S. Ct. 1124, 1132

(2015). The Court thus construed the adjacent term

“restrain” in the Tax Injunction Act—which provides

that district courts “shall not enjoin, suspend or re-

strain the assessment, levy or collection of any tax un-

der State law,” 28 U.S.C. § 1341—+o also refer to equi-

table relief, rejecting the broader dictionary-based con-

struction adopted by the lower court that “restrain”

means any action that might have a “negative impact”

on State tax collection. 135 S. Ct. at 1132-33. The same

logic applies here. Just as “enjoin,” “suspend,” and “set

aside” denote specific remedies available in adminis-

trative litigation, “determine the validity” likewise de-

notes a remedy available against an agency—declare.

tory relief.

Finally, the Government’s expansive reading of “de-

termine the validity” conflicts with the interpretive

“duty to give effect, if possible, to every clause and

word of a statute.” Duncan v. Walker, 533 U.S. 167,

174 (2001) (internal quotation marks omitted). The

Government reads “determine the validity” to refer to

any determination of whether an agency's action is

“sound,” “good,” or “legally sufficient or efficacious.”

Govt. 12. If that were correct, the terms “enjoin,” “set

aside,” and “suspend” in § 2342 would be superfluous

because a court could not “enjoin” or “suspend” an

agency action without finding that it is not “sound” or

“good.”

PDR’s construction avoids such surplusage. “En-

join,” “set aside,” and “suspend” each refer to a differ-

ent type of injunctive relief, and “determine the valid-

ity” correspondingly refers to declaratory relief.

2. History also refutes the Government's position.

The Government asserts that the phrase “determine

the validity” was “obviously transplanted” from the

Emergency Price Control Act (EPCA), which this

Court had interpreted to give “clear indication” of a

congressional intent to preclude district courts from

considering the validity of war-time price regulations

as a defense in civil and criminal enforcement actions.

Yakus v. United States, 321 U.S. 414, 429-31 (1944);

see also Woods v. Hills, 334 U.S. 210, 213-14 (1948). By

supposedly taking this language from the EPCA, the

Government contends, Congress “br[ought] the old soil

with it,” imparting to the Hobbs Act the same preclu-

sive effect. Govt. 14 (quoting Stokeling v. United

States, 139 S. Ct. 544, 551 (2019)).

This argument, however, overlooks stark textual dif-

ferences between the EPCA and the Hobbs Act.

Unlike the Hobbs Act, the EPCA expressly addressed

whether Congress intended to preclude enforcement

courts from considering the validity of agency action.

Contrary to the Government's suggestion, the EPCA

did not merely grant the Emergency Court of Appeals

“exclusive jurisdiction to determine the validity of a

covered order,” and leave all else to implication. Govt.

13 (quoting EPCA, Pub. L. No. 77-421, § 204(d), 56

Stat. 22, 33 (1942)). Rather, in the sentence immedi-

ately following the passage quoted by the Government,

the EPCA stated:

Except as provided in this section, no court, Fed-

eral, State, or Territorial, shall have jurisdiction

or power to consider the validity of any such regu-

lation, order, or price schedule, or to stay, re-

strain, enjoin, or set aside, in whole or part, any

provision of this Act authorizing the issuance of

such regulations or orders ... or any provision of

any such regulation, order, or price schedule....

§ 204(d), 56 Stat. at 33 (emphasis added).

The Government excises this latter sentence even

though it was critical to the Court’s statutory holding

in Yakus. See Govt. 13-14. The Court’s specific holding

was that the sentence highlighted by the Government,

when “coupled with the provision that ‘no court ... shall

have jurisdiction or power to consider the validity of

any such regulation,” was “broad enough in terms to

deprive the district court of power to consider the va-

lidity of the Administrator's regulation or order as a

defense to a criminal prosecution for its violation” Ya-

kus, 321 U.S. at 429-30 (quoting § 204(d), 56 Stat. at

33) (emphases added). Thus, Yakus did not “authorita-

tively construe” the language supposedly linking the

Hobbs Act and EPCA. Govt. 14. It instead construed

that language in combination with a far broader pro-

vision expressly prohibiting other courts from “con-

sider[ing] the validity” of covered orders—a provision

the Hobbs Act conspicuously lacks.

Furthermore, Congress used the phrase “determine

the validity” differently in the Hobbs Act than in the

EPCA. In the EPCA, the phrase stands alone; in the

Hobbs Act, it is one component in a list of terms in

which every other term plainly describes a type of ju-

dicial relief. And unlike the Hobbs Act, the EPCA no-

where uses the phrase “determine the validity” in a

manner that can only refer to a grant of declaratory

relief. See 28 U.S.C. § 2349(a). The two statutes thus

employ the same phrase, but in very different ways.

The Government errs badly in ignoring those textual

and contextual differences. See supra 3-6.

The Hobbs Act’s legislative history further under-

mines the Government's assertion that the Act de-

scends from the EPCA. Neither the House nor Senate

report even mentions the EPCA. Instead, these reports

make clear that the Act was modeled on “the pattern

established for review of orders of the Federal Trade

Commission in 1914 and followed by other laws since

then in relation to many other agencies,” including the

SEC and NLRB. H.R. Rep. No. 81-2122, at 4 (1950) (ci-

tation omitted); see S. Rep. No. 81-2618, at 3 (1950).

Context again helps explain why. The EPCA was

“adopted as a temporary wartime measure” linked to

the grave “circumstances attending its enactment,”

i.e., the nation’s ramp-up to total war after Pearl Har-

bor. Yakus, 321 U.S. at 419, 431-32. There was no rea-

son for Congress to look to an exceptional wartime

statute for Hobbs Act inspiration when it had availa-

ble many other ordinary direct review statutes that

applied to civilian agencies in peacetime.

3. The Government’s sweeping view of the Hobbs

Act also lacks support in this Court’s decisions inter-

preting the Act and its predecessor, the Urgent Defi-

ciencies Act. None of the cases cited by the Govern-

ment embraces the view that the Hobbs Act precludes

defendants subjected to enforcement actions from

seeking review of an agency’s generally applicable le-

gal interpretation.

To begin, FCC v. ITT World Communications, Inc.

and Venner v. Michigan Central Railroad were not en-

forcement actions at all. Both involved obvious efforts

to circumvent available direct review proceedings by

seeking to enjoin not agency orders themselves, but

conduct the orders blessed. In Venner, the Interstate

Commerce Commission entered an order approving a

specific transaction between railroad companies; the

next day the plaintiff sued to block that very transac-

tion. 271 U.S. 127, 128-29 (1926). In ITT, the peti-

tioner simultaneously sought relief under the Hobbs

Act and in district court. 466 U.S. 463, 465-66 (1984).

In both cases, the Court saw through the ploys, mak-

ing clear that “[ljitigants may not evade” the Hobbs

Act through such maneuvers. /d. at 468.

Port of Boston Marine Terminal Ass'n v. Rederiaktie-

bolaget Transatlantic similarly involved an attempt to

evade Hobbs Act review of a party-specific order.

There, a vessel owner claimed it was not liable for fees

that had been approved by the Federal Maritime Com-

mission because the fees were supposedly invalid. 400

U.S. 62, 67-68 (1970). The vessel owner argued that it

had not participated in the Maritime Commission pro-

ceedings that approved the fees and therefore was not

bound by the commission’s order. /d. at 71. Tellingly,

in rejecting this argument, the Court did not state that

§ 2342 flatly foreclosed the defendant’s district court

challenge. Instead, the Court emphasized that the de-

fendant “was in fact represented before the Commis-

sion,” “its interests were clearly at stake,” and it “had

every opportunity to participate before the Commis-

sion and then to seek timely review in the Court of Ap-

peals,” which it “chose not to do.” Id. at 71-72. Port of

Boston thus held that when an administrative pro-

ceeding settles specific parties’ rights, those parties

must seek review under the Hobbs Act and cannot cir-

cumvent it through “collateral” challenges. /d. at 72;

accord United States v. Ruzicka, 329 U.S. 287 (1946).

These decisions do not support the Government's ar-

gument that the Hobbs Act precludes enforcement re-

view of generally applicable rules. Such rules, by defi-

nition, apply to indeterminate parties, whose specific

rights and interests may not have been “clearly at

stake” in the administrative proceeding that produced

the rule, and who may not have had “every oppor-

tunity” to participate before the agency. Port of Boston,

400 U.S. at 72; see Gage v. U.S. Atomic Energy

Comm'n, 479 F.2d 1214, 1218 (D.C. Cir. 1973) (Unlike

those subject to adjudicative orders, persons who may

ultimately be affected by regulations may have legiti-

mate grounds for deciding not to join in the formula-

tion of the rules.”). Indeed, every court of appeals to

consider the issue has held that when such rules are

applied in subsequent enforcement proceedings, re-

spondents can challenge the rules’ validity even if the

Hobbs Act’s 60-day review period has run. Br. 27; see,

e.g., Functional Music, Inc. v. FCC, 274 F.2d 543, 546

(D.C. Cir. 1958).

The Government attempts to distinguish those deci-

sions on the ground that they still require review to

occur “in the court of appeals under the Hobbs Act pro-

cedures.” Govt. 30. This misses the point: If the Gov-

ernment’s reading of § 2342 were correct, Functional

Music would be wrong. That is, if § 2342 actually pre-

cluded enforcement review, the only opportunity to

challenge a rule would be in the 60 days after it issued.

28 U.S.C. § 2344. By its terms, that limitations period

would apply regardless whether subsequent enforce-

ment occurred in an administrative or judicial forum.

See id. Once that window closed, defendants could dis-

pute only whether a rule applied to them, not whether

the rule itself is lawful. Cf. 42 U.S.C. § 7607(b)(2) (re-

stricting review of certain Clean Air Act regulations in

this manner). Thus, the ability under Functional Mu-

sic to challenge an “underlying rule” in an enforcement

action is further proof that the “exclusive jurisdiction”

over covered orders in § 2342 is “exclusive” only as to

direct review. 274 F.2d at 546. It does not displace the

review traditionally available in the event of enforce-

ment. Functional Music also demonstrates that the

Hobbs Act does not pursue the goal of “quick, nation-

wide resolution of the validity of covered agency ac-

tions,” Govt. 18, at the cost of enforcement review. '

B. The Hobbs Act Did Not Provide a Prior,

Adequate, and Exclusive Opportunity for

Judicial Review of the 2006 Order.

Neither Respondent nor the Government disputes

that the preclusive effect of the Hobbs Act is limited by

the APA, which provides, “[e]xcept to the extent that

prior, adequate, and exclusive opportunity for judicial

review is provided by law, agency action is subject to

judicial review in civil or criminal proceedings for ju-

dicial enforcement.” 5 U.S.C. § 703. Instead, they con-

tend that the Hobbs Act gave PDR two “prior, ade-

quate, and exclusive” opportunities for review of the

2006 Order: prior to its release, through participation

in the underlying FCC proceeding; and after Respond-

ent sued, by filing a new petition to the FCC (whether

for reconsideration, a declaratory order, or rulemak-

ing). Resp. 25-42; Govt. 24-29. They are wrong.

' Nor do the reliance interests invoked by the Government jus-

tify eliminating enforcement review. The Government raises the

specter of TCPA plaintiffs challenging FCC orders creating safe

harbors on which defendants relied. Govt. 19. But even if those

ity on parties that relied on them would raise due process ques-

tions not presented here. See Christopher v. SmithKline Beecham

Corp., 567 U.S. 142, 156 (2012) (refusing to defer to agency inter-

pretation that would “impose potentially massive liability on re-

spondent for conduct that occurred well before that interpretation

was announced” because such deference “would seriously under-

mine the principle that agencies should provide regulated parties

fair warning of the conduct a regulation prohibits or requires” (in-

ternal quotation marks and alteration omitted)).

1. The Government claims that PDR had an “ade-

quate” opportunity to challenge the 2006 Order during

the 60-day window after its release. Relying on the At-

torney General’s Manual on the Administrative Proce-

dure Act (1947) [hereinafter APA Manual], the Gov-

ernment contends that Section 703 is “most naturally

understood to incorporate the concept of ‘adequacy

that the Court articulated in Yakus.” Govt. 25. The

Government appears to view that “concept of ‘ade-

quacy” to mean that if an agency review scheme per-

mits parties to “present their claims to the agency and

then seek judicial review within a particular time,” it

is categorically “adequate,” except (perhaps!) as ap-

plied to parties that did not exist during the direct re-

view period. Govt. 25-26.

That cannot be correct. Even the Government con-

cedes that Section 703 was intended to establish a

“general rule that, when a defendant’s liability de-

pends in part on the propriety of an agency action, that

action ordinarily can be challenged in a civil or crimi-

nal enforcement suit.” Govt. 24. Under the Govern-

ment’s “concept of adequacy,” however, Section 703

would be meaningless. Every review scheme that of-

fers direct review would qualify as “adequate,” and so

defendants could never obtain review in enforcement

proceedings.

The Government misunderstands “adequacy” be-

cause it misreads Yakus. There, the discussion of “ad-

equacy” was part of the Court’s due process holding. In

sustaining the EPCA, Yakus did not adopt a myopic

rule that all review schemes that run through agency

processes to a court are “adequate” at all times and for

all purposes, as the Government suggests. Rather, it

upheld the EPCA’s rigid 60-day review window as ad-

equate—even with respect to enforcement proceed-

ings—because of “the urgency and exigencies of war-

time price regulation.” 321 U.S. at 435. In those cir-

cumstances, the Government's regulatory interests

were at their zenith, and parties could reasonably have

been expected to be—and Mr. Yakus in fact was—at-

tuned to the Government’s dictates. Id.

The cases cited in Yakus’s adequacy discussion con-

firm that adequacy requires a real, rather than theo-

retical, opportunity to litigate. Bradley v. City of Rich-

mond, 227 U.S. 477 (1913), for example, involved a

constitutional challenge to a municipal tax scheme.

The Court upheld the scheme, subject to this quali-

fier: “If the right to appear and be heard and to obtain

a review should prove illusory, there would, under gen-

eral principles of jurisprudence, remain the right to ju-

dicial review...” Id. at 483.

The APA Manual supports this same contextualized

notion of “adequacy.” In a passage ignored by the Gov-

ernment, the Manual states that in considering

whether judicial review is available in enforcement

proceedings under Section 703, “the extent to which

the ‘opportunity’ for judicial review prior to the en-

forcement proceeding has been waived or disregarded

by the defendant in those proceedings must also be con-

sidered.” APA Manual 101 (emphasis added). The

Manual thus anticipates decisions such as Port of Bos-

ton. Where an agency order specifically determines a

party’s particular rights and that party chooses not to

pursue immediate review, it will often be fair to say

that the “defendant in [the] proceedings” has “waived

or disregarded” its opportunity for review.

This logic, however, does not hold for orders promul-

gating generally applicable rules. “[U]nlike ordinary

adjudicatory orders, administrative rules and regula-

tions are capable of continuing application.” Func-

tional Music, 274 F.2d at 546. They apply to any party

whose conduct falls within their scope, regardless of

whether the party was engaged in that activity, plan-

ning to engage in that activity, or even in existence at

the time the rules were issued. The Government re-

fuses to say whether it thinks Hobbs Act review is ad-

equate for parties that did not exist when a rule was

promulgated, see Govt. 28, but its argument that the

60-day window suffices for any party that did exist at

that time is little better. Mere existence, after all, does

not confer standing, without which a party cannot ob-

tain direct review even if it participates in agency pro-

ceedings. See City of Bos. Delegation v. Fed. Energy

Regulatory Comm'n, 897 F.3d 241, 248 (D.C. Cir.

2018). Unless a party can show that it was at least im-

minently planning to engage in the regulated activity,

the path to direct review is closed. See Susan B. An-

thony List v. Driehaus, 573 U.S. 149, 158 (2014).? In

such circumstances, the opportunity for direct Hobbs

Act review is “illusory,” Bradley, 227 U.S. at 483, and

Section 703’s “adequacy” standard is properly read to

permit judicial review of agency action within an en-

forcement proceeding.

PDR’s circumstances provide a case-in-point. Noth-

ing in the record indicates that, in 2006, PDR was en-

gaged or planning to engage in activity subject to the

2006 Order. Therefore, even if PDR could travel back

in time to December 19, 2005, review the 384 pages of

the Federal Register published that day, when the

FCC “openfed] a new docket” to “seek{] comment” on

its “unsolicited facsimile advertising rules,” 70 Fed.

Reg. 75,070, and submit comments in that proceeding,

2 The FCC knows this full well. It challenged the constitutional

standing of both parties that sought Hobbs Act review of the 2006

Order, and prevailed as to one. See Biggerstaff v. FCC, 511 F.3d

178, 184 (D.C. Cir. 2007). The Government now describes that

victory as resting on “procedural grounds.” Govt. 5.

it still could not have sued under the Hobbs Act. An

abstract interest in administrative proceedings does

not create Article III standing.

For PDR, the opportunity for direct Hobbs Act re-

view of the 2006 Order was illusory because PDR

lacked statutory standing to raise such a challenge. Br.

25-27. In 2006, PDR was a stranger to the FCC pro-

ceedings, and thus not “aggrieved” by the 2006 Order.

28 U.S.C. § 2344. Nor did it know how the FCC's inter-

pretation would one day be construed by the Fourth

Circuit or any other court (many of which disagree

with the Fourth Circuit's view of what the 2006 Order

means). See Physicians Healthsource, Inc. ov.

Boehringer Ingelheim Pharm., Inc., 847 F.3d 92, 96 n.1

(2d Cir. 2017) (citing cases). And once Respondent

sued PDR in 2014, it was far too late for PDR to seek

direct review.

The Government's primary response is “too bad.” In

its view, “a mode of judicial review is not inadequate

simply because a particular litigant fails to satisfy the

statutory prerequisites for invoking it.” Govt. 26. But

the cases the Government cites for this proposition in-

volved parties whose interests were clearly and con-

cretely at stake at a time when direct review was avail-

able. See Port of Boston, 400 U.S. at 71-72; United

States v. Szabo, 760 F.3d 997, 1006-07 (9th Cir. 2014)

(finding direct review adequate because the defendant

® Contrary to the Government's suggestion (at 27), this Court

need not blind itself to the lower courts’ divergent views. That is

particularly true because the Fourth Circuit's conclusion about

the meaning of the FCC rule rested on its aberrant view that it

was improper to consider the TCPA in construing the FCC's in-

terpretation of that statute. See Pet. App. 14a. The Government

properly declines to defend that aspect of the Fourth Circuit's

analysis, Govt. Br. 27 n.6, and this Court should make clear that

it is wrong.

had standing to seek pre-enforcement review of the

regulation at issue and had specific grounds, based on

his own prior conduct, to do so). Neither case supports

the underpinnings of the Government's position—

namely, that parties must exercise perfect foresight

about how their conduct and the law might evolve, and

must file lawsuits based on those prophecies regard-

less of standing.

Finally, standing considerations also rebut the sug-

gestion (Govt. 29) that Federal Register publication

creates an “adequate” opportunity for review. Mere

constructive notice of agency action does not create

standing to challenge it. That is, no doubt, among the

reasons this Court has expressed qualms about the

“severity” of a rule requiring parties to “protect them-

selves against arbitrary administrative action only by

daily perusal of ... the Federal Register and by imme-

diate initiation of litigation.” Adamo Wrecking Co. v.

United States, 434 U.S. 275, 283 n.2 (1978). The Gov-

ernment provides no reason to cast these concerns

aside, especially when all that hangs in the balance is

an unwanted fax.

2. The Government and Respondent also suggest

that it is fine to deny review in enforcement settings,

even where direct review was only hypothetically

available, because the defendant may seek a kind of

back-door agency review by initiating a petition for

rulemaking, reconsideration, or a declaratory order.

This argument is meritless. Section 703 preserves

judicial review in enforcement settings unless the de-

fendant had a “prior” opportunity for review. In con-

text, “prior” must mean “before the enforcement pro-

ceeding began”—neither Respondent nor the Govern-

ment argues otherwise, and neither seeks to explain

how a proceeding that begins “after a defendant has

been sued,” Resp. 27 (emphasis added), qualifies as a

“prior” opportunity.

Respondent and the Government also sidestep the

practical inadequacies of this option. Neither acknow!-

edges the FCC's past practice of refusing to initiate de-

claratory ruling proceedings in such circumstances.

See Br. 36. Neither acknowledges that such a petition

would not permit review of the original order; rather,

the “agency action” reviewed would be the new order

resolving the petition. Br. 36. And neither disputes

that even if a district court agrees to stay a TCPA suit

while the defendant seeks FCC review—which Re-

spondent concedes district courts are not required to

do, Resp. 36—that administrative odyssey is so

lengthy and expensive that most defendants, facing

ruinous class action liability, will be forced into settle-

ment. Br. 37-39.

To be sure, there are instances where all of these

hurdles were cleared and back-door review obtained.

But even Respondent’s primary exemplar involves a

five-year lag from the time the defendant petitioned

the FCC to the time the D.C. Circuit decided the case.

See Resp. 28-31 (citing Bais Yaakov of Spring Valley v.

FCC, 852 F.3d 1078 (D.C. Cir. 2017)); Br. 36. That is

neither a “prior” nor “adequate” substitute for being

able to raise a legal defense before the court where the

enforcement action is pending.

C. Respondent and the Government’s Posi-

tion Cannot Be Squared with Other

Agency Review Statutes.

PDR’s opening brief also explained that agency re-

view provisions akin to the Hobbs Act have never been

construed to preclude enforcement review. See Br. 31-

33. Respondent and the Government seek to distin-

guish those statutes because they do not expressly vest

the courts of appeals with “exclusive jurisdiction” to

“determine the validity” of agency orders. Resp. 41;

Govt. 30.

This argument fails, however, because the language

of those statutes is just as broad as the Hobbs Act’s.

The SEC’s review statute covers all “review” of SEC

orders, without qualification. 15 U.S.C. § 78y(b)(1).

OSHA's review statute encompasses all suits “chal-

lenging the validity” and seeking “judicial review” of

OSHA standards. 29 U.S.C. § 655(f). The statutes do

not use the word “exclusive,” but that is irrelevant.

Even when “Congress has not expressly provided that

the statutory procedure is to be exclusive,” “specific

statutory scheme|s] for obtaining review” are deemed

“to be exclusive” with respect to direct review. Whitney

Nat'l Bank v. Bank of New Orleans & Tr. Co., 379 U.S.

411, 420-422 (1965).

These statutes thus possess the very features that

Respondent and the Government describe as distin-

guishing features of the Hobbs Act: They confer “exclu-

sive” jurisdiction over “review” of agency action. Yet

courts have never interpreted them to preclude judi-

cial review of agency action in enforcement proceed-

ings brought in district court. See, e.g., United States

v. O'Hagan, 521 U.S. 642, 666-76 (1997).

Respondent and the Government also cannot square

their interpretation with statutes like the Clean Air

Act and CERCLA, which contain direct review provi-

sions comparable to the Hobbs Act’s but also expressly

preclude review in enforcement proceedings. Br. 34-35.

The Government claims these statutes shed no light

on the Hobbs Act because they were enacted later in

time. Govt. 23. But the Government ignores that the

EPCA, enacted before the Hobbs Act, also contained an

express preclusion provision, see supra 6-7. And these

later enacted statutes reinforce that Congress speaks

clearly when it intends to eliminate judicial review of

agency action in enforcement proceedings. The Hobbs

Act contains no such clear statement—moreover, Sec-

tion 703 manifests Congress’s general intent to pre-

serve judicial review in those settings.

D. Constitutional Avoidance Principles

Favor PDR’s Interpretation.

Respondent and the Government also attempt to

sidestep the grave constitutional problems their read-

ing of the Hobbs Act creates. See Br. 39-45. They claim

PDR forfeited its avoidance arguments and that those

arguments lack merit. Resp. 42-44; Govt. 31-33. Both

contentions are wrong.

“Once a federal claim is properly presented, a party

can make any argument in support of that claim; par-

ties are not limited to the precise arguments they

made below.” Yee v. City of Escondido, 503 U.S. 519,

534 (1992). Accordingly, PDR may advance the consti-

tutional-avoidance canon in support of its construction

of the Hobbs Act. The canon is but another “means of

giving effect to congressional intent.” Clark v. Mar-

tinez, 543 U.S. 371, 381-82 (2005).*

With respect to the canon’s application, Respondent

and the Government barely respond. They simply ig-

nore repeated statements by this Court and others

that Yakus-like constraints on judicial review in en-

forcement proceedings would raise grave constitu-

tional concerns in peacetime settings. See PDR Br. 41

n.6. The purpose of the avoidance canon is to resolve

disputes between competing plausible constructions of

a statute in a manner that avoids confronting such

concerns. PDR has demonstrated that its proposed

* Respondent's other forfeiture arguments (at 8, 22, 25-26) fail

for the same reason.

construction of the Hobbs Act is more than plausible.

Avoidance principles thus strongly favor that con-

struction

Il. THE FCC’S INTERPRETATION OF “UN-

SOLICITED ADVERTISEMENT” IS A NON-

BINDING INTERPRETIVE RULE.

Alternatively, the district court was not bound to fol-

low the FCC’s interpretation of “unsolicited advertise-

ment” because that statement constitutes an interpre-

tive rule, binding neither parties nor courts. Br. 45-50.

Respondent and the Government offer no meritorious

response.

First, both argue that PDR forfeited this argument

by not ““disput{ing] that the 2006 FCC Rule is the sort

of “final order” contemplated by the Hobbs Act.” Govt.

33 (quoting Pet. App. 7a n.1.). PDR does not dispute

that the 2006 Order is a final order—in part, it prom-

ulgated binding regulations that indisputably carry

the “force of law.” Columbia Broad. Sys., Inc. v. United

States (“CBS”), 316 U.S. 407, 418 (1942); Br. 48-49.

But the question here is whether the Hobbs Act re-

quired the district court to follow the specific portion

of the 2006 Order interpreting “unsolicited advertise-

ment” in the TCPA. PDR argued below that the Hobbs

Act did not impose this requirement. See Brief of Ap-

pellees at 20, Carlton & Harris Chiropractic, Inc. v.

PDR Network LLC, 883 F.3d 459 (4th Cir. 2018) (No.

16-2185). Its argument here is “in support of that

claim,” Yee, 503 U.S. at 534, and fairly encompassed

by the question presented. Therefore, this argument is

properly before the Court.

Second, without disputing that the relevant portion

of the 2006 Order is an interpretive rule, the Govern-

ment argues that the Hobbs Act makes no distinction

between legislative and interpretive rules. Govt. 34.

That is wrong. Only FCC “final orders” reviewable un-

der 47 U.S.C. § 402 are reviewable under the Hobbs

Act, 28 U.S.C. § 2342(1), and FCC “final orders” are

limited to orders carrying the “force of law,” CBS, 316

U.S. at 418. Even the Government’s principal case rec-

ognizes that general principles of finality, which in-

clude whether an action is “one by which rights or ob-

ligations have been determined, or from which legal

consequences will flow,” govern the “understanding of

‘final order’ for the purposes of the Hobbs Act.” US W.

Commce'ns, Inc. v. Hamilton, 224 F.3d 1049, 1054-55

(9th Cir. 2000) (quoting Bennett v. Spear, 520 U.S. 154,

177-78 (1997)). Interpretive rules do not qualify. They

“do not have the force and effect of law and are not ac-

corded that weight in the adjudicatory process.” Perez

v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015)

(internal quotation marks omitted).

Indeed, the Government recently acknowledged this

basic principle in its brief in Kisor v. Wilkie, No. 18-15.

There, the Government urged the Court to rework

Auer deference so as to end the “seeming incongruity

of giving controlling weight to an interpretive rule that

is not meant to carry the force of law.” Brief for the

Respondent at 26. But here, the Government seeks an

interpretation of the Hobbs Act that would create

much the same “incongruity”—but through the more

extreme mechanism of making agency interpretive

rules unreviewable outside of a narrow period in which

(as shown, supra at 11-16) judicial review will be una-

vailable to most parties against whom the rule could

someday be enforced.

Whatever else may be said about the Hobbs Act,

there is no reasonable argument that it was intended

to give binding effect to interpretive rules that the

APA classifies as non-binding. And that suggests a

narrow alternative answer to whether the Hobbs Act

“required the district court in this case to accept the

FCC's legal interpretation.” Br. (i) (emphasis added).

Because the FCC’s interpretation of “unsolicited ad-

vertisement” is a mere interpretive rule, it binds no

one. Br. 45-46.

CONCLUSION

For the foregoing reasons, the Fourth Circuit's judg-

ment should be reversed.

Respectfully submitted,