/>iLast year, the United States Supreme Court’s Loper Bright decision put an end to “Chevron deference,” a judicial practice of deferring to federal agency interpretations of ambiguous statutory language. While the legal blogosphere has spent considerable ink weighing the impact of Loper Bright, the Supreme Court recently rejected a pair of petitions on the amount of deference owed to the National Labor Relations Board (NLRB), casting an even longer shadow over Loper Bright. So, what can we learn from the Supreme Court’s inaction?
Differing Sources of Deference
Issued in 1984, Chevron created a “bedrock principle of administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute it administers.” According to Kent Barnett and Christopher J. Walker in Chevron in the Circuit Courts, Chevron was “one of the most cited Supreme Court decisions of all time.” Under Chevron, a court would first determine whether a statute clearly answered a particular question. If it did, the court would simply apply the statute’s answer. If the statute was “silent or ambiguous,” however, the court would defer to the interpretation of the federal agency charged with enforcing the statute if the agency’s interpretation was “based on a permissible construction of the statute.”
Loper Bright put an end to Chevron’s reign, however, holding that deference to an administrative agency violated the Administrative Procedures Act (APA) because courts and judges were supposed to interpret statutes unless a statute specifically reflected Congressional delegations of discretionary power to the federal agency. In other words, if Congress specifically delegated authority to agencies to promulgate regulations and relevant definitions, Loper Bright appeared to leave that deference intact. After all, in those situations, Congress, not Chevron, required courts to defer to agencies. If Congress did not make that delegation, however, a court, not the agency, was responsible for interpreting an ambiguous statute.
The NLRB is supposedly one of those agencies Congress tapped to promulgate regulations and relevant definitions for the NLRA. Indeed, the Supreme Court noted in Ford Motor Co. v. NLRB, years before Chevron, that Congress had made a “conscious decision” to delegate to the NLRB “the primary responsibility of marking out the scope of the statutory language.” Similar delegations to federal agencies exist in the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the recently passed Pregnant Workers Fairness Act and the PUMP Act.
So, Loper Bright should have little impact on the NLRB’s interpretation of the NLRA and other labor statutes, right? Not so fast. Reasonable minds, like the Sixth and Ninth circuits, might disagree.
Circuital Thinking
The Ninth Circuit’s Approach
The dispute started in the Ninth Circuit between a group of hospitals and their employees’ union. Per the collective bargaining agreement, the hospitals deducted union fees from participating employees if the employees executed a written assignment authorizing the deduction. After the collective bargaining agreement expired, the hospitals continued to deduct dues for several months but then stopped. They notified the union that they believed the written assignments violated the Taft-Hartley Act because the union’s assignments did not have specific language regarding revocability upon the expiration of the collective bargaining agreement.
The union filed an unfair labor practice charge, the NLRB filed a complaint, and an administrative law judge determined that the hospitals committed an unfair labor practice by unilaterally ending the practice of collecting union dues. After a series of decisions, the NLRB determined that the Taft-Hartley Act did not require specific language and found that the hospitals engaged in unfair labor practices. On appeal, the Ninth Circuit agreed with the NLRB’s decision.
After the Supreme Court issued Loper Bright, the hospitals petitioned the Supreme Court for a writ of certiorari, arguing that the Ninth Circuit improperly deferred to the NLRB’s interpretation of the NLRA instead of performing its own statutory analysis.
The Sixth Circuit’s Approach
The Sixth Circuit took a slightly different approach. There, a union and a road paving company began negotiating a collective bargaining agreement. When negotiations broke down, the union began picketing. As negotiations continued, the union requested information from the company regarding bargaining unit employees. However, the company did not provide that information, and the union filed unfair labor practices charge against the company based on picketing violations and the failure to provide that information. The NLRB brought a complaint, and an administrative law judge issued a decision finding that the company violated the NLRA by refusing to provide the employee bargaining unit information. The NRLB affirmed the administrative law judge’s decision.
On appeal, the Sixth Circuit, citing Loper Bright, declined to defer to the NLRB’s interpretation of the NLRA and decided to exercise independent judgment in deciding whether an agency acted within its statutory authority. Performing its own analysis, the Sixth Circuit affirmed the NLRB’s decision.
The company petitioned the Supreme Court for a writ of certiorari, arguing, in part, that the Sixth Circuit was required to defer to the NLRB’s interpretation of the NLRA pursuant to Loper Bright. The company also was seeking to challenge the president’s removal authority, and may have made its Loper Bright argument to sweeten the deal for Supreme Court review (since both the NLRB and Sixth Circuit reached the same result on statutory interpretation).
Supreme Inaction
Given these two apparently conflicting interpretations of Loper Bright, it seemed the Supreme Court was primed to clarify the appropriate approach. Was the Ninth Circuit correct in deferring to the NLRB’s analysis of the NLRA or was the Sixth Circuit correct in adhering to Loper Bright’s direction that it decide the meaning of ambiguous statute? At any rate, certainly a circuit split requires Supreme Court review?
Apparently not. The Supreme Court denied certiorari in both cases without any clarifying statement, leaving it unclear whether Loper Bright will impact NLRB or other agency decisions in the future. So, what does this mean? On one hand, in both cases the federal circuit courts ultimately affirmed the NLRB’s decisions, albeit after performing different analyses. Maybe the Supreme Court was unwilling to wade into these waters if both courts ultimately reached the correct decision. On the other hand, were these simply cases where the statutory text was unambiguous, such that agency interpretations were not even truly implicated?
Unfortunately, we’re left to wait until the next dispute. Perhaps time will tell, even if the Supreme Court won’t. In the interim, Bradley is available to answer any questions you might have regarding new administrative rules or decisions.
